Comments Received by the Administrative Office of the United States Courts in response
to Request for Comment on Privacy and Public Access to Electronic Case Files
Each comment has a number, date, and where provided, a geographical identifier. In cases
where the comment was sent by an individual with no business or professional affiliation noted,
the name of the commentor is not included. In cases where the comment was sent by an
individual in a professional capacity or on behalf of a group or organization, the name of the
commentor and/or the name of the group is included.
The Administrative Office of the United States Courts reserves the right not to post a comment,
or any part thereof, which contains irrelevant or scurrilous material. Footnotes and endnotes
attached to comments have been omitted.
No. 1
11/08/00
Richard A. Berger
Associated Professional Services
Waterloo, NY
All court records should be available to the public by all means possible at all times, with no
exceptions.
No. 2
11/10/00
Jennifer L. Hathaway
Judgment Recovery Specialist
Foremost Search & Recovery Co.
A division of DAR Services, Inc.
Camden, DE
I am writing in response to the initiative to restrict and/or shut down the electronic/PACER files.
I strongly oppose such mandate to shut down this important outlet to get information.
The use of electronic files, especially PACER, is a very important outlet for professionals that
use this source. May I also note, that the information contained in these files is a duplicate of the
information contained in the hard copy file located at the court.
Without the information access thru online sources, it would make many professionals jobs
harder. I collect judgments that debtors owe, but do not pay. These judgments are legally
rendered in a court of law.
By limiting or decreasing online sources it would make it highly difficult to locate these debtors.
While I can understand the problems in today's world with right to privacy, these court
documents are public record, are available as hard copy at the agency they are located at, and are
not altered or added to when put into an online forum, such as PACER.
Please add me to your list of those who do not wish to see this source taken away from the
professionals that use online resources in a legal and professional way.
However, I don't wish to take part in a public hearing. By all means, use my letter as evidence to
this issue.
No. 3
11/11/00
Charles T. Pinck
President of the Georgetown Group
Washington, DC
(It appears this text appeared in the Legal Times on Monday, October 30, 2000)
Need to Know: In the rush to protect privacy online, Americans must not forget the very real
benefits of public access to information.
Recently, I was contacted by a person whose aunt had died suddenly under mysterious
circumstances and had left her multimillion-dollar estate to a much younger person whom she
had known only a short time. I run an investigative services firm. My new client was very
suspicious that this younger person had exerted undue influence over the aunt and possibly
played a role in her death. But without any actual evidence she couldn't convince the police to
look into the matter.
So I ran a database search available to licensed investigators to find the younger person's address
history and Social Security number. And what I learned was that the deceased aunt's name and
Social Security number were connected to this person's home address - a possible indication of
credit card fraud. Armed with this evidence, my client was able to persuade the police to take up
the case.
As an investigator who specializes in the use of online resources, I do this kind of work all the
time. Sometimes the clients hire my firm directly; sometimes we're hired by the clients' lawyers.
And now in the name of privacy, lawmakers are threatening to stop these database searches.
With the explosion of the Internet and the ever-increasing sophistication of computer technology,
safeguarding personal privacy has understandably become a critical issue. New laws to protect
personal information are being introduced on the state and federal levels at a frenzied pace.
Many of these laws, proposed and already enacted, are reasonable. I'm well aware of the
incredible amount of information available over the Internet and the potential for misuse. New
statutes that address the collection, use, and dissemination of personal information in order to
protect individuals against identity theft and related crimes are needed.
But as I watch the concern about privacy ratchet up, I'm troubled that these efforts to protect
personal privacy will soon restrict access to previously public information. Such information is
absolutely crucial to professional investigators. And investigators play an important and often
unheralded role in our legal system.
The Truth Is Out There
Professional investigators access personal identifying information from database companies that
require every investigative agency to provide proof of licensing and to abide by specific rules for
its use. We use this information in many ways: to prevent and investigate fraud and other
criminal acts; to find stolen and misappropriated assets; to enforce judgments and locate people
seeking to avoid paying child support and other debts; to investigate the theft of intellectual
property; to find witnesses; to conduct due diligence and background searches; to assist in
litigation; and to discern the truth in a variety of other matters.
Personal identifying information is critical every time a licensed investigator must determine the
correct identity of an individual or verify that documents refer to a specific individual. This is
typically accomplished by matching a name with an address, Social Security number, or date of
birth - commonly referred to as "identifiers." Imagine the difficulty in finding, say, one particular
Michael Brown absent such information.
Database searches based on identifiers, often referred to as "credit headers," are always used
when searching for criminal records, perhaps the most critical aspect of many investigations.
Since the only nationwide criminal record database, the National Criminal Information Center, is
not open to the public, private investigators must look for criminal records jurisdiction by
jurisdiction. To determine where to search, we commonly begin by putting together an address
history from online sources.
For example, an individual's address history gathered online played a major role in a recent due
diligence investigation. With that history, I was able to locate a criminal record that otherwise
would have remained hidden. It persuaded my client not to pursue a multimillion-dollar
investment with a prospective business partner. Without access to credit headers, I wouldn't have
found it.
But new Federal Trade Commission regulations and two bills pending in Congress - the Privacy
and Identity Protection Act (S. 2876 and H.R. 4857) and the Identity Theft Prevention Act (S.
2328 and H.R. 4311) - may soon make such searches impossible. The information contained in
computer databases will be walled off, even to licensed investigators.
Under the Gramm-Leach-Bliley Act, the FTC recently issued privacy regulations, including a
prohibition on the use of credit header information other than for very limited purposes under the
Fair Credit Reporting Act. While a literal reading of the act does not require such a prohibition,
the FTC chose to interpret it as applying to credit headers. The agency did this by reversing its
longstanding position that personal identifying information contained in credit reports is not
"financial." By deciding that such information - including a person's name - is "financial," the
FTC is able to claim that this information must be protected under the Gramm-Leach-Bliley Act.
Back in 1997, the FTC reported to Congress that it saw no need for privacy legislation
concerning credit header information. The new rule, scheduled to be implemented by July 1,
2001, would effectively prohibit most current uses of this information.
The two bills now under consideration in Congress would collectively ban the sale or purchase of
Social Security numbers and require their removal from credit headers, ban the sale of credit
headers altogether, and grant the FTC broad authority to make further rules regarding the use of
personal identifying information.
Perhaps the most troubling aspect of the proposed Identity Theft Prevention Act is a provision
that would place investigators in the same legal category as credit bureaus. This would require us
to turn over our entire files upon request to suspected felons and others being investigated.
Victims or witnesses, fearing retribution, would be extremely reluctant to speak with any
investigator. We might even have to obtain signed permission from the individuals we
investigate - an obviously unworkable prospect.
Meanwhile, the proposed Amy Boyer's Law (S. 2554), which has been inserted into a "must
pass" appropriations bill, provides a better solution to this problem. It would make it illegal to
sell Social Security numbers to individuals - the greatest source of misuse - but would permit
continued access for licensed investigators and certain other businesses that have a legitimate
need. (As of last Friday, the president was threatening to veto the appropriations bill, in part
because of the Amy Boyer provision.)
Need to Know
Severely restricting access to personal identifying information will undoubtedly aid criminals and
others seeking to hide their illicit activities. It will embolden some individuals to commit even
more crime, knowing that tracking them down will be that much more difficult. It will help
criminals trying to conceal stolen assets and avoid prosecution. Ironically, legislation designed to
protect individuals against identity theft and other types of fraud will cripple investigation of the
very same crimes.
Among those hurt will be lawyers and their clients. Such laws could make the service of process
nearly impossible. They'll increase the cost of hiring investigators, who will have to resort to
more time-consuming, less effective, and costlier techniques.
According to The Wall Street Journal, a 1995 survey of major New York City law firms found
that investigators were retained in approximately "a fifth of the firms' litigation matters . . . a 33
percent increase in the past five years." I'm confident that a survey today would find that use of
investigators had risen even further.
Because state and federal law enforcement agencies are overwhelmed by their workload,
professional investigators also play a critical role in supplementing their efforts.
In short, while laws designed to protect privacy and prevent identity theft are being introduced
with the best of intentions, they will have damaging consequences. Americans need access to
information to protect themselves, their families, and their companies.
Access to public information and the right to privacy are both hallmarks of a healthy society.
Confronted by new and rapidly changing technology, we're struggling to strike a balance between
these two ideals. A former high-ranking military officer (for whom I once worked) told me that
phone books were not publicly available in the old Soviet Union. He also said that he would
never want to live in such a society, where only the government and the police had access to
information.
Americans are blessed with freedom in many different forms, including ones that we don't always
recognize. Many of us take for granted the benefits of the free flow of information. We need to
recognize that unreasonable restrictions placed on access to previously public information will
critically impair the functioning of our legal system and ultimately our society.
No. 4
11/13/00
Arianne Ciarlo
Claimsupport.com
Pompano Beach, FL
I strongly protest the Government's newest initiative to close down access to Pacer and other
Federal Court databases. This is yet another erosion of the public's right to gain access to open
records that the Privacy special interests and their political machine are
attempting to pressure the Courts to embrace.
If this rule goes through, it will result in an enormous change on how lawyers can obtain
information and the cost thereof. You will be back to having to hire investigators and paralegals
all over the nation to hand-check court files.
In short, lawyers will be once again practicing in the stone age and their clients will pick up
the cost of this type of inefficient method of conducting very basic investigation. Once access to
court records on a federal level are changed, the States will also begin to restrict data
commerce on-line by attorneys, investigators, paralegals, etc. While they cannot
shut down access to hard files at the Courthouse, one can only imagine the cost of hiring people
to go to many court facilities to do a single check.
Our experience has shown that "Request For Comments" is the first step that is used to narrow
access, as was the case by the FTC when it commenced the evisceration of the banking, credit,
and financial databases through its very narrow interpretation of recent law. (Now being
challenged in Federal Court in Washington DC; see IRSG, et al., vs. FTC, et. al.)
No. 5
11/13/00
John Healy
Litigation Intelligence Service
Warner, NH
Courts have always been open and accessible in this country. It is one thing that sets us apart
from Third World Banana Republics. The records are used, daily, by the legal, investigative, law
enforcement and investigative community. Over and above that they should remain open to the
public. They have a right, and there is a basic need for the public to be able to observe this
process.
No. 6
11/13/00
Landers Service Company
Private Investigation
Milton, MA
Thank you for the opportunity to comment on this matter. 1) Your privacy questions should be
divided between access by A) licensed professionals and B) general public. They are two
different questions. 2) Lawyers are individually licensed and responsible to the Board of
Overseers and ultimately to the court in each state where they practice. 3) Private investigators
are licensed and responsible to the state police and ultimately to the courts in each state where
they practice. 4) Both lawyers and private investigators have the professional responsibility to
develop full information on certain individuals and subjects as a duty to their client's right to full
representation before the law. 5) Background investigations performed by private investigators
are severely inhibited by privacy restrictions. Whether the subject of investigation is being
considered for the presidency of a major corporation, coach of a little league team or physician of
a girl swim team, private sector background investigations are critical to public safety and they
are all performed by licensed private investigators. Certainly, the FBI is not restricted in their
investigations of appointees who must appear before the US Congress. A simple matter of public
safety in both areas. 6) The Drivers Privacy Protection Act, 18 USC ch 123 addresses the private
investigator permitted use question better than most, allowing permitted access for permissible
uses. 7) These comments apply to civil, bankruptcy and criminal cases. 8) I have met the touring
PACER people and was very much impressed with them as professionals. 9) Caution: state laws
around the country frequently differ from each other in privacy questions such as criminal
records, birth records, electronic intrusions, interception of oral communication and others as
they also differ from the USC. 10) In your judicial conference be aware of which state each
conferee comes from. Likely, the conferee will reflect that state. 11) Texas and Florida are
outstanding in their records availability to the general public. Massachusetts is an
embarrassment. Example: In Massachusetts you may have access to criminal records and civil in
any district court or county superior court. You may walk in off the street and search the criminal
and civil indices of the court and order a copy of the file of needed. BUT, you may not search the
index of the entire state all at once via state-wide data base. How can one search every district
and superior court in Massachusetts? One cannot. 12) Television greatly influences public
opinion with very few credentials to do so. Television portrayal of private detectives is
outrageous. Those programs as created by morons for unthinking people to watch. As a result,
public opinion get formed. I have appeared as a guest speaker several years in a row at the
Romance Writers of America conference trying to teach correct facts about professional
investigators for their books. 13) Medical records. Our office has conducted Contestable Death
Claims investigations for 25 years in the insurance industry all over the United States. Even when
I am armed with letters of representation and authority from the carrier, prior releases from the
deceased, current releases from the beneficiary, probate court executor appointments and all the
rest, it is difficult to obtain the medical history on an individual. And yet, during television talk
shows some privacy freak will appear and claim that PI's can obtain anybody's medical record on
the internet without the persons knowledge and permission. It just plain isn't true. We are
constantly bombarded like this on TV and in other uninformed areas. These are some of my
concerns regarding privacy. Thank you.
No. 7
11/13/00
John P. Frank, Esq.
Lewis and Roca LLP
Phoenix, Arizona
With regard to your request for concerns in relation to the electronic access to court files, my
partners raise one concern: There is a concern that this device will make it very easy for persons
with no legitimate interest to obtain financial information about "targets" for possible fraud.
While this, of course, will be equally true if the evildoer had to go to court to get the file in the
traditional way, this device may made fraud easier. I send no solution to this problem and think it
probably is a cost which simply must be borne. However, in bankruptcy this could be particularly
serious. One of my partners sends me the following paragraph: "The big problem is with
bankruptcy cases, although some appellate cases would involve trade secrets and could be
problematic as well, if readily available. Bankruptcy debtors must disclose their Social Security
numbers, bank account numbers and other details of their lives in their petitions and bankruptcy
schedules. That's not too much of a problem for corporate debtors, but it can be a real problem
for individuals. It would be easy for anyone wanting to "steal a person's identity" to use his Social
Security number and bank account numbers to incur debts in phone transactions and have the
purchased assets shipped to the thief's residence. I suspect the problems can be much more
severe.
No. 8
11/14/00
William Losefsky
Private Investigator
Goffstown, NH
As a private investigator, I use the pacer court system on a DAILY basis. I assist people and
attorneys to collect court ordered judgments. Without the use of pacer and other public records
data bases, my efforts would be futile.
No. 9
11/14/00
E. Guy Paradee
Chief Investigator
Investigative & Accident Reconstruction Services, Inc.
Rutland, Vermont
I am the President of Vermont's only professional private investigator and security officer
association. I am a former detective lieutenant with the Rutland City Police Department. I hold
two college degrees and working on my Masters. I also teach criminal justice classes at a local
college. I work as the chief investigator and president of a large private investigating and.12
accident reconstruction agency licensed in several states. I have clients all over the US and
abroad. Obtaining information is what makes most of our investigations successful. The
collection of public information is absolutely essential in forming the foundation of many of our
investigations. Private investigators are not interested in wasting time, energy and money on
obtaining information that is not essential to their investigations. Any while I agree that certain
types of information should be obtained by private investigators or any other type of investigator
for that matter with certain restrictions and "need to know basis", the type of public information
that you seek to restrict is simply wrong. We seek this information for many types of
investigations such as locating witnesses, conducting background investigations on doctors,
nurses, teachers executives and all types of people for pre-employment purposes. The lack of
information that courts contain would be very detrimental in our ability to document any
unlawful or legal problems these people may have had. It is clear that you lack the information
necessary to understand why investigators need this information and what it is used for. I suggest
you listen to the testimony of us and read our letters to educate yourself that there are reasons
why this information is absolutely essential for us to conduct legitimate business with court
information. Thank you for your consideration.
No. 10
11/14/00
Teresa Vila
Premiere Investigation Services
Fort Lauderdale, FL
As a Licensed Private Investigator located in Fort Lauderdale FL, as great deal of my search
options include databases available over the internet to verified users. To prohibit these types of
databases would effectively shut the door on the ability of my small, minority business to
compete in the broader, nationwide market. Without an unlimited bank account to facilitate in
person searches, we would not be able to provide customers with any services. This would limit
our firm to taking on local cases only, and could, in all likelihood, cause us to go out of business.
The ability to obtain accurate and detailed information is the cornerstone of our business. We
train our employees to decipher data provided accurately. To involve the time, travel and money
necessary for in-person searches is beyond our reach. This is the age of technology, the year is
almost 2001. To return to an antiquated system rather that the advanced systems appearing on an
almost daily basis, is to walk backwards. We should all embrace technology for what it is -The
ability to provide data to a wide range of acceptable users. Let us go forward, not backwards!
No. 11
11/14/00
Ted L. Moss, President
The Background Network, Inc.
Cleveland, OH
Regarding the proposed restriction on public access to electronic case files at the federal level, I
would like to offer the following commentary. My name is Ted Moss. I am the President of The
Background Network, Inc. I am also a member of the American Society for Industrial Security
and the Legislative Committee Chairman for the Cleveland Chapter. Our organization conducts
pre-employment screening for employers on a nationwide level. Restricting electronic access to
public records is, in my opinion, the same as restricting access. I am sending accompanying
articles which I have written in the past regarding this subject. Most recently, the Driver Privacy
Protection Act restricted access of driving records to companies like mine which conduct
employment screening. All though the Driver Privacy Protection Act considers employment
screening a permissible purpose, electronic access has been restricted by this law. There are
many unforeseen consequences of restricting access to public records. One of which is the affect
it has on public safety.
In 1993, a survey conducted by Northwestern National Life Insurance found that more than two
million employees suffer physical attacks on the job each year and more than six million are
threatened in some way.
More than a thousand Americans are murdered on the job every year, 32% more than the annual
average in the 1980's. A Time-CNN poll in May 1995 reported that 37% of Americans see
work-place violence as a growing problem. In the same poll, 18% witnessed assaults at work and
another 18% worry about becoming victims themselves.
According to the American Management Association, 19% of respondent managers reported at
least 1 actual incident of work place violence since January 1990. An additional 33% reported at
least one threatened incident.
One hundred billion dollars are lost annually to employee theft and embezzlement.
One-third of business bankruptcies are caused by employee theft and embezzlement, this
according to the US Chamber of Commerce.
The statistics go on and on, not to mention the number of drunk drivers arrested each year or the
number of deaths caused on the highways by drunk drivers, some of whom were working at the
time. These issues are certainly a public safety issue. The private security consulting industry
and, specifically, the pre-employment screening industry, serves a vital role in public safety. We
serve a role that law enforcement can not logistically and legally fill. The background screening
industry utilizes public record retrievers on a nationwide level. Access to this data electronically
is not necessarily of vital importance in order for us to get the work accomplished. From a
business standpoint, my firm, in fact, would stand to gain from restricting such access to lawyers
and other individuals via an electronic means. Lawyers, as well as the general public, would be
forced to use services such as ours who employ a nationwide network of court retrievers who
physically verify records at the clerks office in both the federal county and state levels.
The problem lies in the turn-around time and cost of such services. Limiting access forces our
company and our industry to raise prices. Turn-around time can be reduced from 24 hours to as
much as a week or more in some instances to accurately check court records on a nationwide
level. This restriction of information can cause employers who should be screening to not do so
because of the lag time involved in getting an answer in a timely fashion regarding an applicant's
background. Thus, increasing the liability risk to both the employer and the general public at
large. Individuals with felony records, histories of violence, poor driving records or no driving
privileges at all can be hired and put into dangerous positions to both their fellow employees and
the general public at large.
In essence, restricting electronic access serves to hurt the general public more than help it. The
very few documented incidences of individuals using such records for unscrupulous purposes are
far outweighed by the risks created by hiring a violent employee or an individual with a criminal
record. The risk to the public safety and the US economy in general is at stake. I urge you to
consider these facts when deliberating on these restrictions that are proposed. Should you have
any questions or comments, please feel free to contact me at any time.
Freedom or Privacy?
An article by Ted L. Moss
President of The Background Network, Inc.
What is privacy? Is it a right or a privilege? The Bill of rights claims that, "Men are endowed by
their creator with certain inalienable rights", that "among these are life liberty and the pursuit of
happiness". The authors might have meant freedom from fear of oppression. It may have
included a right to be secure in ones property and home. Mostly it meant the right to govern ones
self through a government, "Of the People, By the People and For the People."
Recently The Director of The Maryland department of Motor vehicles, Anne S. Ferro
commented, "This is another example of the general public not knowing what's good for it!"
She was referring to legislation known as the DPPA or The Driver Privacy Protection Act during
hearings on the matter. The Chairman of the Hearings, The Honorable Senator Richard Shelby of
Alabama (R) may have been absent in law school when they covered The Bill of Rights and other
aspects of The Constitution.
The DPPA is legislation, which was recently upheld as constitutional by the Supreme Court
(Reno Vs.Condon). Public law 106-69, which originally enacted in 1994, says that driving
records are not public records and that the state motor vehicle departments can be barred from
disclosing or selling personal information. This would be a noble law if in fact it served the true
interests of "The People" and wasn't the latest hot button for politicians trying to score points in
the Personal Privacy feeding frenzy in Washington.
The fact is that the DPPA only restricts sales to marketing lists, databases and casual requestors.
It requires the states to adopt certain components of the Federal law so that drivers are
automatically excluded from their personal information being re sold to these types of
companies. This is known as the mandatory opt out. Prior to this drivers had the option in most
states to "opt out" or exclude themselves if so desired. In fact in Maryland when the State
conducted a huge advertising campaign by Mail, Television, Radio and at the DMV itself to
notify drivers of this right; A large majority of drivers were not concerned.
The concern has been raised that by making drivers personal information for sale it creates the
opportunity for stalkers and other criminal elements to prey upon the general public. As in the
case of a California woman who was murdered several years ago. A tragedy to be sure but there
is a much larger and more determined tragedy looming on the horizon:
In 1997 1.4 Million people were arrested for D.U.I. (Driving Under The Influence) or related
offenses----more than all other reported criminal offenses except larceny and theft. (NHTSA,
1999) Despite a 2% decline in the National Crime Rate the number of arrests for Driving Under
the Influence increased from 1.2 Million in 1993 to 1.4 million in 1994. This is an arrest rate of
one for every 127 licensed drivers in the United States. (NHTSA, 1996)
In 1997 an estimated 513,200 offenders were on probation or in jail or prison for driving while
intoxicated by alcohol (DWI). (BJS, 1999) In 1998 one out of nine intoxicated drivers in fatal
crashes have had a prior DWI conviction within the past three years? (NHTSA, 1999)
According to The Department of Labor there are 140 million people currently employed in this
country. With American Businesses losing 100 Billion dollars annually to employee theft and
embezzlement and over 1 million users of illegal drugs in the workplace employers routinely
conduct background checks on their prospective applicants. The background screening industry
is a 5 billion dollar a year business. The private security field provides an essential service to the
U.S. economy by screening applicants who may be convicted drug dealers, violent individuals or
incompetent or dangerous drivers.
The Security industries role fills a gap that law enforcement can't begin to meet. With an
estimated 20 to 30 million background checks performed nationwide each year the private
security industry is meeting and fulfilling a vital public safety need. Keeping the workplace
productive, providing a safe work environment and protecting companies profits are important
reasons for conducting background checks. In addition the liability to the company, which arises
when hiring an employee who will be driving on company business, is immense. Hiring a truck
driver, salesman, delivery person or other employee without a driving record check is not only a
potential problem to the company but also a potential threat to public safety.
The risks of an unlicenced driver on the road or a multiple D.U.I. offender driving for any
company are obvious. Background screening firms rely on access to public records, driving
records, credit reports and other information to assess an applicant's reliability, criminal history
and potential for drug or alcohol abuse on the job. The DPPA has severely hampered this
process.
Although employment screening is a permissible purpose under the act access to such records are
being granted only to a couple of select companies.
This David vs., Goliath situation has created an unfair competitive advantage for these large
information brokers. Choice Point and DAC Services have had existing agreements with the
individual states for years. Their re-sale of driving records has come under scrutiny due to a
mistake originally created by Choice Point in Pennsylvania. Both these companies have sold
driver information to Insurance companies, Marketing companies, Background Screening firms
and Private Investigators in the past. The majority of these companies have used the information
responsibly in the performance of their duties. A few have not and as a consequence caused a
panic in state and federal legislatures. With little concern for the bigger picture the threat of
misuse of personal identifiers has left this country with a much greater risk. The threat to public
safety is far outweighed by a dangerous driver than by a possible misuse of what essentially
should be a public record.
The issue for the more than 5000 background screening agencies and 10,000 plus private
investigators is access. These records are still available but not easily. The states are providing
the "Goliath" companies with electronic and automated access in many cases. These large
providers are receiving preferred pricing as well. While the smaller companies are forced to set
up accounts with each state, submit signed releases, notarized forms, pay high fees and wait in
some cases 10 to 14 days. This creates the problem for the employer who was used to a 2 to 3
day delivery of driving information at a reasonable price. The large companies suspiciously seem
to be in a unique position to solve this problem, as they just happen to also conduct criminal
background checks and other screening services. If these companies can have what appears to be
unrestricted or at least preferential access then so should the rest of the industry.
In the interest of public safety as well as business economic security access to these records must
be made uniformly available to all permissible users. Choice point and DAC services should be
responsible with their unique business advantage. Legislation such as this and other recent laws
restricting use of credit header information are ill conceived and politically motivated. They prey
upon people's fear of the Internet and unknown. In this day of the information superhighway
politicians and governments alike would have you believe that they should be the keepers of your
personal information. It is only through open government that we are truly free. When we are all
informed and each of us has the ability to stand behind our accomplishments and take
responsibility for our mistakes that we act as our fore fathers intended. Public openness means
public records.
When the judicial process is available for public scrutiny then the government cannot hide its
mistakes. This is one of the true principles of freedom of speech or rather freedom of
information! You voluntarily give your personal information out every day. Your grocer, doctor,
library, car dealership, accountant, magazine subscriptions all share sell and resell your
information. At last check we were all the better for it.
Our economy thrives on information; to stifle it is cutting off our nose to spite our face. To let the
government control it is at the least dangerous and at worst oppression. Freedom of information
and unrestricted access to public proceedings is the best way to watch what our leaders are doing.
There is a trade off between privacy and freedom. We have access to known sex offenders then
why not drunk drivers or thieves? That's acceptable until were the one who goes to court. Then
we want privacy. If we let the government fool us into thinking that closed public records and
secret files are good for us the we are no longer a democracy we will be the property of the
STATE. Personal responsibility is the true issue at hand not personal privacy!
No. 12
11/14/00
Washington, DC
I understand this issue to be one of on-line privacy. There is no reason not to provide the same
level of privacy on-line as we do at the Court. No more privacy, or security, should be had simply
by reason of the increased accessibility. If the question is one of privacy, regardless of venue,
then our case law should provide the answer. The internet should simply provide greater and
better access to those documents already in the public domain. Care should be taken to ensure
that all persons still have at least the same access as they do now. Whether that means retention
of paper documents, or provision of free computer services, I do not mean to decide. I only state
that the internet should make access easier for all persons, not just those with home or office
computers. Standards of privacy do not alter because of new technology. Technology must
change to meet our standards of privacy. The judiciary should beware a double standard for
paper and electronic documents. Companies are even now photocopying or scanning court files
to fill up their commercial databases (see, for example, Juritas.com). If we give access to paper
but not electronic copies, we are increasing the cost of public access, with minimal effect on
safeguarding privacy.
No. 13
11/14/00
Sanford Meltzer, JD
Keep current service. We protect the rights of the people and the proposal would hamper our
efforts in this age of computers and need for instant information
No.14
11/14/00
Abilene, TX
Would be helpful in avoiding travel and copying expense. Would be helpful in multiparty
lawsuits if, under local rules, files could be downloaded and discovery, under appropriate
protections, could be made accessible without the necessity of multiple duplication and mailing.
Care should be exercised to avoid publication of confidential information, which could be
addressed in local rules and protective orders.
No. 15
11/15/00
Joe Kolman
Reporter, Omaha World-Herald
Omaha, NE
What is public record in paper files should be public record in electronic files. However, as
someone who deals with information daily, I can understand the fears of providing mass amounts
of seemingly personal data electronically.
The options mentioned giving attorneys and members of the courts unlimited access. I would
recommend extending that provision to research entities, such as, individuals, academics and
members of the press. A provision could be written into the policy that would exclude gathering
of the data for commercial services, such as mailing lists. This sort of provision already exists in
some federal laws regarding public information.
Thank you for allowing me to comment.
No. 16
11/15/00
Richard Wilstatter
Criminal Defense Attorney
White Plains, NY
As a criminal defense attorney, I object to the proposed restrictions to PACER for criminal cases.
Federal criminal cases often involve prosecutions in more than one district. Frequently, we might
have a case in a district far from home. It is crucial to have continued access to PACER to keep
track of litigation on our cases. If I am representing a cooperator, I can move to have the record
sealed if that is necessary. Defense counsel are already at a tremendous disadvantage compared
to the government lawyers. We need to be able to find out what's going on in related cases in
other districts. Access to this information is a big time saver. Counsel can avoid hiring
investigators or other lawyers just to find out basic information from another district. If the
information is public, the public ought to have access.
No. 17
11/15/00
College student
Lexington, KY
In response to your request on what the public thinks about internet access to public documents: I
don't think that any document available for public viewing should receive any more protection
from such viewing just because it is being requested via the internet. After all, if any John Doe
can walk in off the street and get a copy of a public document, a student 1,000 miles away should
also be allowed the same access via their desktop computer. Any "sensitive" material, which
parties may want to keep private, should either be sealed or censored from public access, while
the main document remains a matter of public record.
In case you haven't figured it out yet, I'm a student trying to do a research project on the Metallica
vs. Napster issue. I wanted to be able to refer to the actual lawsuit itself, but cannot even find
that it exists. All I have to go on is news articles, the Metallica website, etc. But I really wanted
to have a copy of the actual lawsuit so that I would be sure to get a correct idea of the issues
involved. The lawsuit was supposed to have been filed in the U.S. District Court - Central
California Division.
I don't suppose you could help me? It would be greatly appreciated.
No. 18
11/15/00
Rebecca Lynn Woodward
Legal Assistant, Moyer and Bergman
Palo, IA
As a legal assistant at Moyer & Bergman, in Cedar Rapids, Iowa, I am often asked to obtain case
information from both the Federal Courts and the Iowa District Courts. The Iowa District Courts
have a policy wherein they will not even look up a docket number if given a case name. The
Federal Courts, on the other hand, have excellent web sites where decisions can be obtained on
line, and the Clerk of the Federal Courts are willing to assist in searches. All case information
that is available to us on-line just makes our job easier and less expensive for the client because
we would obtain the information no matter which way we have to go about it. Thanks.
No. 19
11/15/00
Newtonville, MA
Please note that notwithstanding the special interests of various groups that would
like to see the restriction of court information on the internet, I suggest that the "original intent"
of the framers of the constitution be reviewed on this matter.
I believe that the "original intent" of the founders of this nation desired a free and open form of
government, particularly in respect to the operation of the court system. In this regard, with
today's use of the internet as the growing primary form of research and communication, the
restriction of information in the court system on the aforementioned media constitutes a form of
obstruction to the public to free and open access to our court system.
I strongly believe that movement toward restriction of access to our courts in this regard
constitutes a overt disregard for the "original intent" in the establishment of our system of
government, the greater good of the public and movement towards the decay of the
integrity of our system and subsequently the decline of the public's confidence in said system. I
strongly urge you to promote the free and open access of the court system on the internet to the
fullest extent possible allowed by current and future technology.
No. 20
11/15/00
Judith Christie
Federal Court Employee
Detroit, MI
As a court employee and as a records manager, I would favor option 2 for criminal cases. Option
2 for criminal cases protects individuals from possible intimidation by keeping certain materials
out of the public eye. In the court for whom I work, very little of the named documents are
maintained in the court file, plea agreements being the ones that are kept in the case file but they
are sealed if ordered by the judge. If plea agreements were kept completely out of case files, that
would be most desirable.
The existence of social security numbers on civil documents is also a concern because of identity
theft. I think the judiciary should ban the routine use of these numbers in student loan cases and
the like.
No. 21
11/16/00
Coeur d'Alene, IO
The ability of the public to access the courts, both as litigants as well as observers has been a
right of the people since the inception of our country. That is why our courts are open, except for
special issues, instead of the other way around.
I certainly agree that medical information should remain private. I believe that a simple rule of
thumb will be that if the information would be public if I were to be in court or go to the court
house to view a file, then it should be public on the internet. If you opt to file bankruptcy, then
you must expect your financial dealings to become public.
On another topic... What is this 17 cents a page thing. If it is already computerized, it is not
costing any 17 cents a page for me to view a document on my own computer. You cannot recoup
the costs of entering the information, particularly if you would be entering the information
anyway. This is why we pay taxes!
No. 22
11/16/00
Julie Titone
Staff Writer, The Spokesman Review
Coeur d'Alene, IO
I'm writing to give my strongest possible support to continuation of, indeed enhancement of,
public electronic access to this nation's court records.
Full awareness of judicial actions is an underpinning of our freedoms. As a U.S. citizen, and as a
journalist, I see only bad things coming from efforts to restrict access. Only minor,
non-significant deletions to protect privacy -- such as shortening of social security or credit card
numbers -- should be considered.
No. 23
11/17/00
Columbia, MO
I fully support online access to records and dockets of the federal court system. I believe that the
current unified system, PACER, is antiquated and does not serve the needs of the general public.
By online access, I mean both access through dedicated machines and through the Internet.
No. 24
11/17/00
San Anselmo, CA
Any sensitive personal information should be blocked out ("xxxxx"), all else in transcript should
be made public on the Internet.
Thank you for your attention.
No. 25
11/17/00
Norman Mayer
Clerk of Court, EDVA
Fairfax, VA
(Personal views-not those of the court)
This is a very difficult public policy issue. Although I am the Clerk of Court for the U.S. District
Court, Eastern District of Virginia, my comments reflect my own personal views and are not
intended, and should not be used, as an official position of the court.
It is my belief that privacy protections should be put in place on electronic court records,
restricting public access where the privacy interests outweigh the public's interests in openness.
Sensitive personal and business data need to be protected before electronic records are made
accessible.
This can be done via built-in restrictions in the automated systems to keep pre-defined data
confidential; renewed scrutiny by the litigants and judges to seal material on a case-by-case basis;
and only allowing wide access to all data to the litigants and parties to the cases.
Further, it may also be time to make the same restrictions on the paper records, so that access is
consistent no matter what format the records are in. This would be very difficult for the records
custodians to implement, however.
Thank you for the opportunity to comment.
No. 26
11/19/00
Milwaukee, WI
I think it is rather simple. If court cases are to be open to the public, then the
public should have easy access to those records. Making access hard to obtain for
the public, when internet access can be made, only makes a opening of such records
to those who are able to go to the records office and get them. Else limiting
such access to those who are not well versed in how to apply for such information.
The last reason one might see for not allowing internet public access is for the
government to simply try to charge for copies or even access in order to
discourage the public from obtaining such information, all for the sake of making a buck!
Milwaukee for example, already allows internet access to their Circuit Court files.
People use this information many times for protection. Women who begin dating someone new
check to see if the man has a record that they need to be concerned about, for
their children and/or just for themselves. Landlords also use this service to see if someone
they might rent to has a history of violence or bill problems etc...This also works in reverse for
renters. There are so many reasons why people should have easy access to all court records. After
all, if someone is guilty of any kind of a crime, and as long as that person deals with people in
any manner, then those people should by all means, have the right to know the person they
might have to deal with! It is for their protection. Leaving the public in the dark
leaves them to danger, danger that they could very well avoid.
Please note that my name and address above is fake. I am sorry to do that, but
I am not sure if this site is suppose to be for Lawyers only. Since I am NOT
a lawyer, and since I felt you might really need to hear from a member of the
general public on this matter, I took the liberty to write this. The only thing that is real is my
email address should you wish to comment back to me or simply tell me to get lost!
I do thank you for your time and for reading my comments.
No. 27
11/20/00
Kent, WA
Electronic records should only be reviewable at the courthouse, not across the Internet.
No. 28
11/20/00
Renton, WA
While most paper documents filed today are available for viewing as public record, individuals
wishing to view them are constrained by court hours and viewing procedures. These procedures
often require individuals to document who they are before they are allowed a copy. Only copies
of documents are provided at the requesting individual's expense. Unlimited Internet access
would eliminate these few privacy safeguards now in place. If courts DO go to an open access
system, not only should the viewing hours be limited to court hours, but also some sort of system
for monitoring access should be in place to deter fraud. Charges should be similar to those
required for hard copies, and, of course, "read only" copies should be provided.
No. 29
11/20/00
Jim Sweeney
James M. Sweeney and Associates (Private Investigator)
Davenport, IA
I am the owner of a private investigation firm in Davenport, Iowa. I also have a division that
does extensive pre-employment screening for a variety of companies. My investigation company
specializes in prevention of criminal activity in the workplace and investigation of employee
misconduct. I consider myself and m y agency very professional.
For the past eleven years I have accessed both civil and criminal records on a variety cases.
These records were searched for legitimate reasons and often time s have been invaluable in
helping to protect the assets of companies and individuals.
I also know that as in any profession, there are those that take liberty with in formation that
should be kept confidential and therefore ruin it for all of us. I personally believe that there are
documents involved in certain criminal cases and civil cases that are and should remain private.
This would include tax returns, medical records, treatment results and other such documents. To
my knowledge, the court has always been just in deciding what documents should and should not
be seen by the public. For that reason, I would like to see the option that would treat paper and
electronic access equally and assumes that specific sensitive information would be excluded from
public view or presumptively sealed.
I believe that it serves the purpose of the public and provides adequate protect ion to all parties
that electronic access be gained to obtain sufficient to secure understanding of what a case is
about and the determination made in the case. This has always been sufficient although at times
it would have been nice to have more.
I do believe that it is extremely important to have access to identifiers such a s a date of birth or
social security number. There must be a way to verify that the information in the file does relate
directly to the subject of inquiry. This may require different levels of access allowing certain
parties to obtain documents containing this information.
I would suggest that there be a provision in the software that allows the person seeking access to
enter the social security number or date of birth and receiving a positive or negative response as
to whether it is the correct subject. This prevents the court from providing those identifiers.
Typically, anyone seeking records has one or the other or both of the identifiers. That way the
record is confirmed.
Thank you for allowing for public comments.
No. 30
11/21/00
Norway, ME
I feel that the proposals are fair, but there has to be extreme security in the matter of
criminal cases, as noted in the outlines-defendants and their families would be at risk
for possible retaliation from absolute strangers should they be allowed free and easy access to
material that is only intended for court use and disposition. The status of a case, and other
"public" information should be readily available, but other material, such as pleas and past
personal history of the defendant should be kept off line. As one involved in a case at this time, I
feel my privacy outweighs any public interest in the case, and would be very concerned
to have absolute strangers reading material that even I would rather they not. If it were not for
the Internet, indeed, I would not have found information regarding the case I'm concerned with
more readily, as the briefs for proceedings and rulings were found on several useful legal
sites-which is all I would grant should be available to the general public at this time. Anything
more would be opening the door to abuse and possible harassment for the people concerned in
criminal cases.
No. 31
11/21/00
San Francisco, CA
The data provides very useful insights into the causes of bankruptcy, which is not
available anywhere else, and therefore should be made public for the purpose of study
and education. However, there is no reason to provide the social security number of filers,
which can be mis-used, and the street address of filers could also be blocked if necessary. City or
zip code is sufficient information for most studies. I believe long term that creditor information
should be downloadable, perhaps on a subscription basis, and anything the courts could provide
that help further explain the cause of
bankruptcy would also be helpful.
No. 32
11/22/00
Beaumont, TX
Request for Comment includes the following:
"Individuals who seek a particular document or case file will need to open a PACER account and
obtain a login and password. After obtaining these, an individual may access case files ? whether
those files were created by imaging paper files or through CM/ECF ? over the Internet. Public
access through PACER will involve a fee of $.07 per page of a case file document or docket
viewed, downloaded or printed. This compares favorably to the current $.50 per page photocopy
charge. Electronic case files also will be available at public computer terminals at courthouses
free of charge."
My comment:
In order to make electronic files available to the public and/or interested parties and attorneys via
internet on the same basis as they shall be available at the courthouse, the cost to the person
seeking those records ought to be the same, in my opinion.
At present, I may go to the courthouse and view files for free, may I not? So why not let me view
them online for free?
If I need to see a hundred pages to select the one that applies to my need, then at the courthouse,
using paper files, I would pay fifty cents for a photocopy of that one page, would I not? But with
the proposal above, I would pay seven dollars to see all hundred pages, then download the one to
my computer. Yet, if I went to the courthouse to see the electronic pages, I would look at all of
them for free, then print one out for how much? Free? Fifty cents? Seven cents?
My suggestion is that you make all the records available for free to all the public. To charge
anything - even a few pennies - for a document says on its face that access ought to be rationed
by wealth; that citizens with money are somehow deemed "more equal" than those without. I'm
sure this is not what you intend, but it is what would happen.
Also, in this same vein, I propose that it will be far cheaper to pay court bureaucrats to perform
all the necessary computer functions for this facility, than to pay private bureaucrats plus profits
for their employers. Provision of services like this is a proper government function, and ought to
be handled by the government, not the private sector.
Thank you for allowing me to comment. I may choose to comment further on this or other points
at another time, before the established deadline.
No 33
11/22/00
Cheyenne, WY
The phrase "public record" implies the information contained therein is available to the public. It
does not seem fair to limit public disclosure to those with enough time, money, or physical ability
to produce themselves in person at the District Clerk's Office. Such a policy unfairly
disadvantages those who may need the record, but find it impractical to get the information if a
personal visit is required.
There are many problems with electronic filings containing sensitive information. Perhaps the
worst would be information concerning the cooperation to the government provided by a
defendant in a drug case. Such information could result in bodily injury or death if made public
in certain populations, such as prisons. Documents containing such records should be sealed, but
sometimes mistakes are made.
The burden must be upon the filing party to insure the information in a public record is safe for
public consumption. To hold clerks liable would be impractical due to the sheer volume of
documents filed each day. Still, clerks can be asked to keep an inquiring mind when scanning in
documents to look for information that obviously should not be available to the general public.
No. 34
11/22/00
Gary, IN
I believe public information should be listed on the internet. The World Wide Web is the future.
Soon, most homes will have computers--maybe not in the foreseeable future, but computers will
be required in order to exist in the world. Having this information on line is a tremendous step
for mankind. We can do away with paper. Staff will able to be cut because information is
available at your finger tips. Even if someone were to visit an office for a document. They could
have access to the computer to look the document up. No need for someone to search through
the mounds of paper to get to a file.
No. 35
11/22/00
Seattle, WA
If it is public record, then I believe it should be as easily accessible via internet as paper. Thanks.
No. 36
11/23/00
Mineola, NY
Please do not eliminate electronic access to criminal cases. Doing so would represent an
abridgement of the free access to public information.
No. 37
Kent Morlan, Esq.
Internet Publisher
Tulsa, OK
I am an attorney and the editor of MoreLaw.Com. Among other things, MoreLaw collects and
publishes information about civil cases including jury verdict and settlement reports and
information about the judges, lawyers and experts involved in the litigation process. It is my
opinion and the position of MoreLaw that access to public records should be free to the public in
all instances and that access via the Internet should be free. For all practical purposes, the public
does not have access to the records of the Federal District Courts because an account is required
and there is a charge for accessing the information.
From personal experience, I can attest to the fact that the vast majority of attorneys don't even
know about PACER and have never used the service. Given the fact that Federal Courts handle a
small fraction of the cases handled by the state courts of general jurisdiction, the number of
people who would have any interest in the information you are concerned about will be very
small. Also, since most discovery is no longer filed with the clerks, there isn't much to see on
most sites, e.g., the United States District Court of New Mexico, that currently make some of
their records available for viewing.
In my opinion, you need to make access to judicial information easier rather than harder. The
calendars of the courts and the dockets need to be available via the Internet for free!
No. 38
11/24/00
Thomas Lincoln
Criminal Defense Attorney
San Juan, PR
The following are my comments to the proposals regarding electronic public access to criminal
case files:
Proposals:
Criminal Case Files
1. Do not provide electronic public access to criminal case files. This approach advocates the
position that the ECF component of the new CM/ECF system should not be expanded to include
criminal case files. Due to the very different nature of criminal case files, there may be much less
of a legitimate need to provide electronic access to these files. The files are usually not that
extensive and do not present the type of storage problems presented by civil files. Prosecution
and defense attorneys are usually located near the courthouse. Those with a true need for the
information can still access it at the courthouse. Further, any legitimate need for electronic access
to criminal case information is outweighed by safety and security concerns. The electronic
availability of criminal information would allow co-defendants to have easy access to
information regarding cooperation and other activities of defendants. This information could then
be used to intimidate and harass the defendant and the defendant's family. Additionally, the
availability of certain preliminary criminal information, such as warrants and indictments, could
severely hamper law enforcement and prosecution efforts.
Comment: I am a criminal defense attorney in the District of Puerto Rico. Although I would
personally find it very convenient to be able to have electronic access to criminal case files, I find
that --at least for the time being-- such information should not be available online. If such access
were to be granted, it should be on a limited basis, automatically excluding all sorts of categories
such as motions for change of plea, plea agreements, motions dealing with any sentencing issues,
to name but a few. CJA Vouchers should also not be available online. Moreover, if electronic
access to case files is to be implemented in criminal cases, procedures should be provided for
attorneys to be able to assure that any document they so request to be kept sealed and/or off-line,
be kept sealed and/or off-line, or that it otherwise be returned to counsel, thus guaranteeing that
information counsel and/or his client do not want to be made public, is not compromised. Note:
The reason(s) for counsel and/or the client to wish certain information be kept sealed and/or
off-line may sometimes be obvious, but such is not always the case, and the benefit should be
given to the attorney's determination.
2.. Provide limited electronic public access to criminal case files. This alternative would allow
the general public access to some, but not all, documents routinely contained in criminal files.
Access to documents such as plea agreements, unexecuted warrants, certain pre-indictment
information and presentence reports would be restricted to parties, counsel, essential court
employees, and the judge.
Comment: See Comment to previous proposal.
No. 39
11/24/00
Chehalis, WA
Internet access to court documents and cases is the best thing which has happened to the
American
public. It is necessary for a person to be fully informed.
No. 40
11/24/00
Andrew U.D. Straw,Esq.
Bloomington, IN
Civil: I strongly support maximum public access, with a recommendation to the legislature to
increase criminal penalties for misuse of such information and enhanced civil remedies as well
for those who are harmed by misuse. *All* records should be available over the Internet if they
are available for public perusal in the courthouse. Just as no one stands at the door of the
courthouse and keeps certain people out, so should no one be discriminated against simply
because they do not have the means or desire to travel to the courthouse to view public
records. I also oppose charging for public documents provided over the Internet. Taxpayer
money has already been expended to make these documents available, so they should be
available to anyone for free. There is a distinct difference between printing at the
courthouse on the court's copy machine and printing from one's own computer at home. The
upkeep of one's own printer should not be used as a basis for charging when the clerk does not
have to expend money to do the printing. Public documents should not be a cash cow. Tax
money should be expended to make the system open, and then the system should be open and
free for the public to use.
Criminal: I can understand law enforcement reasons for wanting to keep certain documents
private, but I disagree with the starchamber approach that prevents the public from being able to
see what happens in the courts taxpayers pay for. Plea agreements should be public so that
taxpayers can evaluate the performance of prosecutors and judges. Any documents that a judge
does not have a compelling reason to seal should remain open and available on the Internet.
Personal information in Bankruptcy and other similar cases: social security numbers and credit
card numbers should be excised or "virtually sealed" to prevent obvious likelihood
of abuse. Whole documents, however, should not be sealed simply because certain specific
information needs to be excised or protected. As XML begins to invade the e-filing business, it
will be exceedingly easy to simply ensure that certain criminal abuse-prone information gets
"private tags" -- precluding even the need for a clerk to make that determination.
The Courts should not be cajoled into a mode of secrecy simply because there is a risk of privacy
invasion due to electronic dissemination of public information. If there are rights of privacy
either under the Constitution or other statute, the person whose rights are at risk needs to take the
initiative to protect those rights.
Courts should not backpedal on their commitment to openness simply because new technology
has come along. This result would be the equivalent of sealing all order books and case files in
1960 because the new copy and fax machines made it easier to copy and transmit a document
from the courthouse than re-writing or re-typing it by hand.
No. 41
11/24/00
J. Stephen Ryan, Esq.
Katy, TX
Mechanisms, Rules, and law already exist to protect litigants' sensitive information.
Trade secrets, tax returns, medical information, and other information legally recognized
as private or "sensitive" may always be protected by motion to seal, etc.
The default policy choice should always be resolved in favor of openness of the Courts
and their records, as recognized by present law. The perceived difficulty of obtaining
physical access to Court records has never deterred credit bureaus, private investigators, and the
monied and powerful from accessing these public records at will; to impose artificial restrictions
against full public Internet-mediated electronic access would operate only to disenfranchise the
general public of their right to conveniently view the records and operations of the Courts for
which their taxes pay, and continue to ensure that the full records are available only to those
powerful, knowledgeable or advantaged enough to physically seek them out.
By its nature, the litigation process exposes normally nonpublic information to public view, but
there is no rationale for keeping the information only physically available to those willing to go
to the Courthouse, and burdening the public with such antiquated methods of accessing the
records of their hitherto fully open Courts.
In addition, many benefits to our society have been realized from the historic doctrine of
openness of the Courts, and attempts to conceal or burden the right of the public to view Court
records should be closely and stringently scrutinized.
All records of the Courts, saving only those recognized by law as appropriate subjects
for potion and Order to seal, should be available online. Privacy decisions making
certain information sealable should, as has been the case so far, be made on a case
by case basis, and the Offices of the Courts should not here make new law and policy
regarding what would be effectively a "sealing" of court records for 99.9% of the public
who cannot go to the Courthouse in person.
Additionally, great benefits for litigants, the Bench, and attorneys are realized by making all
Court documents in a case readily accessible online. Full Internet access to Court records will
benefit the administration of justice and our legal system as a whole.
No. 42
11/25/00
In the Toysmart case, customers submitted this info to Toysmart. From what I have read, it seems
like you (the government) wants to allow at least some of these customer lists to be sold to
similar companies, to appease the creditors in bankruptcy trials. This, to me, is a blatant invasion
of privacy. These customers submitted this info to Toysmart, not a similar e-toy company or any
other business entity. It appears as if the government is allowing anyone with enough money to
access huge amounts of private information. Now, the companies that purchased this info have
significant power.
Identity theft is only one of the many possible intrusions of individuals privacy that could occur.
Toysmart's customers should not be punished because Toysmart went bankrupt, Toysmart should
be punished. DO NOT allow this blatant invasion of privacy to occur.
No. 43
11/26/00
Alexandria, VA
Personal data--credit information, address, social security number, photographs, etc., whether on
paper or electronic copies accessed via the Internet--should be blacked out from court documents
released to the general public in order to protect our Constitutional right to privacy. If the
personal data are to be released to the general public, permission should first be sought from the
individual, who's right to privacy may be violated. By not following my recommended course of
action, the Courts place all of us at risk of "identity theft" and other crimes, not to mention a
serious loss of privacy.
I am not a lawyer and I do not represent any special interest groups. I am a federal employee for
a US foreign intelligence agency.
No. 44
11/26/00
Seattle, WA
I am a probate administration paralegal. I am in favor of treating unsealed electronic court files
the same as unsealed court files have been in the past--they should be available for public review
and subject to photocopying/downloading. The availability via Internet will reduce costs to our
clients as an alternative to having a messenger or attorneys' service employee copy documents at
the courthouse. As a hobby genealogist, I believe it will be a boon to future researchers.
No. 45
11/27/00
To whom it may concern:
Public access to court records is necessary and required in an information-based economy such as
we have. Making court records available over the Internet is necessary to ensure public and
corporate safety and security. Thank you for the opportunity to comment.
No. 46
11/27/00
Alan Schroder
Law Librarian
Costa Mesa, CA
I am supporting full and open access to all court records filed electronically and in print.
Furthermore, I would strongly urge the court systems to maintain both electronic and print
filings. So-called private or personal information in court filings is frequently used to further
investigate a claimant. Such use is lawful and been practiced for decades.
The transient nature of information technology makes print versions of court filings imperative.
Until a reliable and predictable electronic standard is created and agreed upon, electronic filings
are tenuous at best. The AOUSC must determine what the electronic archive standard will be
(e.g. 20 years?), software and browser considerations, form and format of filings, adaptability of
current filing requirements to the electronic world, staffing considerations, funding, and point of
service considerations including speed of delivery and conduit.
I believe the courts should function as servants for the people and not as research and
development entities for third party commercial online service providers unless a substantial
licensing agreement is reached beforehand that benefits the court systems in general. Finally, the
lawful use of court records and filings has been ongoing for decades without privacy concerns.
There are numerous laws on the "books", both criminal and civil, that protect individuals from
harm. No need to start further restricting access to court filings on account of increased
electronic filing. In this age of ADR and sealed court documents AOUSC needs to manage this
new technology effectively, much as it has the more familiar print filings in the past and present.
If you require and further comment or considerations please don't hesitate to contact me. Thank
you.
No. 47
11/27/00
I believe that the privacy policy should be confined to access via courthouse only. The
information should not be available to just stumble over when searching for something else
entirely. The person accessing this information should want it specifically and going to the
courthouse to get it, is not onerous. It just weeds out the undedicated.
I also believe that the cameras should not be allowed in courtrooms. We all saw the mugging and
entertainment play to the cameras during the OJ Simpson trail. This was not serious court. This
was strictly entertainment. Our courtrooms should not be viewed as entertainment. They should
be business and that does not include media business
No. 48
11/27/00
Linden, IN
I believe that all court records should be accessible through the internet. I can go to the
courthouse to obtain the information; however, it makes life much easier and I miss a lot less
work by being able to obtain the information over the internet. If the courthouse had hours that
were more flexible it might be different.
No. 49
11/27/00
Cordova, TN
I work in health information management and would be very concerned if patient medical
records became open to public review via the internet. I am now employed by an integrated
delivery network in an ambulatory setting. A significant part of our business is related to
occupational health and worksite injuries. For example: If a healthcare worker experienced an
exposure to HIV and then sued the organization for negligence, would that employee's records
related to HIV status be open to review on the internet?? This is very troubling legislation.
No. 50
11/27/00
Birmingham, AL
I feel the internet opens this type of data to eyes that have no business seeing this data. Please
keep access the way it is at present. As citizens, we have already lost more of our privacy and
freedom than we should have ever given up with out a fight.
No. 51
11/28/00
Rennsalaer, NJ
That the Courts should go to a computer filing system is ok . However , The intrusion into all
aspects of our private information is to great now and is being miss used by many different types
of individuals - many times in ways that provide no benefit to the individual and many times to
his or her detriment. I believe that viewing of all public court documents should be restricted to
the respective Courthouse only . Further , that the Courts should move to protect the non-court
personal information on individuals from computer dissemination because this type of
information is already being abused and needs to be curbed , restricted , or stopped .
The potential for abuse is much greater than the potential for benefit in making court documents
available in this manner.
No. 52
11/28/00
Alexandria, VA
The Internet is the means by which all people will have full access to information. It is inevitable
that one day all court cases will be available in electronic form just as all court cases are available
today in paper format. This is simply the way society will grow. The issue of privacy is an
important one, but if documents are available to the public through other means currently why
restrict access to those few who can make it to the courthouse. As long as every reasonable effort
is made to protect those who are relying upon the courts for protection this medium should and
will be used. It is inevitable.
No. 53
11/28/00
Alpharetta, GA
If a document, whether used in court proceedings or otherwise, is considered to be a public
document then immediacy of access should have no bearing on the dissemination of the material
in question. The concept of restricting electronic access to public documents, because of the
possibility of mass dissemination, treads perilously close to restriction of first amendment rights.
Would we be willing to pronounce publication of public documents off limits to traditional press
outlets? Doubtful. If it is in the public interest for a document to be deemed a public document
then it is in the public interest to encourage the widest dissemination possible. To do less makes
a mockery of the very concept of "public."
No. 54
11/28/00
Clyde Hill, WA
Civil Cases: a blend of options 1 & 2 is to be preferred; private and sensitive information would
be sealed on application of an attorney representing the party whose information is in the record;
this is an application, not a motion, and presumptively should be granted absent just cause; such
information could then be available on application to the hearing judge (or, another justice if the
trial judge is not available); such applications for disclosure would have to state the reason or
purpose for which the information is needed; commercial use of disclosed information must be
prohibited (this includes not only commercial sale but also media use/disclosure) violations must
be subject to exemplary sanctions & fines.
Criminal Cases: maintain the status quo (at least for the near future), i.e., no disclosure
electronically, no electronic record.
Bankruptcy : electronic case files should be opened and available, as at present for paper files,
using the guidelines of Sec. 107.
Thank you for your attention.
No. 55
11/29/00
Chicago, IL
I am concerned about the erosion of privacy for sensitive information. Public access to the
sensitive information can lead to great harm, including unwarranted discrimination, identity theft,
and other physical, financial, and mental harms. Accordingly, court records should have
some protection from unrestricted, widespread public access.
I submit below IN ALL CAPS a response to each proposal regarding security / privacy of court
files.
Civil Case Files
1.Maintain the presumption that all filed documents that are not sealed are available both at the
courthouse and electronically.
This approach would rely upon counsel and pro se litigants to protect their interests on a
case-by-case basis through motions to seal specific documents or motions to exclude specific
documents from electronic availability.
It would also rely on judges' discretion to protect privacy and security interests on a case-by-case
basis through orders to seal or to exclude certain information from remote electronic public
access.
THIS OPTION DOES NOT ADEQUATELY PROTECT LEGITIMATE PRIVACY
CONCERNS. FOR EXAMPLE, IF A COURT RECORD HAPPENS TO INCLUDE A SOCIAL
SECURITY NUMBER OR OTHER SENSITIVE FINANCIAL AND PERSONAL
INFORMATION, ANONYMOUS THIRD PARTIES COULD USE THIS INFORMATION TO
ACCESS PERSONAL FINANCIAL, MEDICAL, EMPLOYMENT, AND OTHER RECORDS
NOT NORMALLY GIVEN TO INDIVIDUALS AND BUSINESSES IN THE PUBLIC AT
LARGE.
THIS OPTION DOES NOT PROVIDE SUFFICIENT PRIVACY PROTECTION.
2.Define what documents should be included in the "public file" and, thereby, available to the
public either at the courthouse or electronically.
This option would treat paper and electronic access equally and assumes that specific sensitive
information would be excluded from public review or presumptively
sealed. It assumes that the entire public file would be available electronically without restriction
and would promote uniformity among district courts as to case file content. The
challenge of this alternative is to define what information should be included in the public file
and what information does not need to be in the file because it is not necessary to an
understanding of the determination of the case or because it implicates privacy and security
interests.
THIS OPTION ENABLES PROTECTION OF LEGITIMATE PRIVACY INTERESTS BUT
WOULD REQUIRE MORE WORK ON THE PART OF COURTS,
ATTORNEYS, AND LITIGANTS. ADDITIONALLY, THE LACK OF CLEAR STANDARDS
THIS PROPOSAL SEEMS TO PRESENT COULD LEAD TO EXTENSIVE LITIGATION,
AND THEREFORE CREATE MORE DEMAND FOR OVER DEMANDED, LIMITED
COURT RESOURCES. IT IS BETTER THAN NO PROTECTION AT ALL BUT NOT THE
IDEAL METHOD.
3.Establish "levels of access" to certain electronic case file information.
This contemplates use of software with features to restrict electronic access to certain documents
either by the identity of the individual seeking access or the nature of the document to which
access is sought, or both. Judges, court staff, parties and counsel would have unlimited remote
access to all electronic case files.
This approach assumes that the complete electronic case file would be available for public
review at the courthouse, just as the entire paper file is available for inspection in person. It is
important to recognize that this approach would not limit how case files may be copied or
disseminated once obtained at the courthouse.
THIS OPTION IS FLAWED TO THE EXTENT THAT VISITORS TO A COURT CAN STILL
OBTAIN POTENTIALLY SENSITIVE PERSONAL INFORMATION FOR WHICH THE
PUBLIC HAS NO LEGITIMATE NEED AND THAT MAY BE USED TO CAUSE
FINANCIAL OR HARM TO A PARTY. PARTIES TO LITIGATION OFTEN HAVE NO
CHOICE IN THE MATTER. A LITIGANT MAY BE FORCED TO DEFEND A LAWSUIT,
WIN, AND STILL END UP RECEIVING HARM BY BEING FORCED TO HAVE
INFORMATION MADE PUBLIC THAT WOULD OTHERWISE REMAIN PRIVATE
SIMPLY BECAUSE ANOTHER PARTY ELECTED TO FILE A FRIVOLOUS OR A WEAK
LAWSUIT.
4.Seek an amendment to one or more of the Federal Rules of Civil Procedure to account for
privacy and security interests.
PRIVACY AND SECURITY INTERESTS SHOULD BE A KEY PART OF THE HANDLING
OF COURT RECORDS. THE INTERNET AND COMPUTER TECHNOLOGY TODAY
GREATLY EXPAND THE ABILITY OF MALICIOUS AND ILL-INTENTIONED ACTORS
TO USE SENSITIVE INFORMATION TO CAUSE PERSONAL OR FINANCIAL HARM AT
ANOTHER'S EXPENSE. LITIGANTS SHOULD HAVE SOME RIGHT TO PROTECT
SENSITIVE INFORMATION NOT NORMALLY AVAILABLE TO THE GENERAL PUBLIC.
THE FAILURE TO PROTECT INFORMATION IN WHICH INDIVIDUALS MAY HAVE
LEGITIMATE PRIVACY INTERESTS CAN ACT AS A DETERRENT ON LEGITIMATE
LITIGATION.
Criminal Case Files
1.Do not provide electronic public access to criminal case files.
This approach advocates the position that the ECF component of the new CM/ECF system
should not be expanded to include criminal case files. Due to the very
different nature of criminal case files, there may be much less of a legitimate need to provide
electronic access to these files. The files are usually not that extensive and do not
present the type of storage problems presented by civil files. Prosecution and defense attorneys
are usually located near the courthouse. Those with a true need for the information can still
access it at the courthouse. Further, any legitimate need for electronic access to criminal case
information is outweighed by safety and security concerns.
The electronic availability of criminal information would allow co-defendants to have easy
access to information regarding cooperation and other activities of defendants. This information
could then be used to intimidate and harass the defendant and the defendant's family.
Additionally, the availability of certain preliminary criminal information, such as warrants and
indictments, could severely hamper law enforcement and prosecution efforts.
THIS OPTION PROVIDES THE GREATEST PROTECTION TO PERSONS INVOLVED IN
CRIMINAL LITIGATION, INCLUDING WITNESSES AND JURORS, AND BEST ENSURES
THE EFFICACY OF THE CRIMINAL JUSTICE PROCESS.
2.Provide limited electronic public access to criminal case files.
This alternative would allow the general public access to some, but not all, documents routinely
contained in criminal files. Access to documents such as plea agreements, unexecuted warrants,
certain pre-indictment information and presentence reports would be restricted to parties,
counsel, essential court employees, and the judge.
THIS OPTION MAY NOT PROVIDE SUFFICIENT PROTECTION OF ALL LEGITIMATE
PRIVACY AND SECURITY CONCERNS.
Bankruptcy Case Files
1.Seek an amendment to section 107 of the Bankruptcy Code.
Section 107 currently requires public access to all material filed with bankruptcy courts and gives
judges limited sealing authority. Recognized issues in this area would be addressed by amending
this provision as follows: 1)specifying that only "parties in interest" may obtain access to certain
types of information; and (2) enhancing the 107(b) sealing provisions to clarify that judges may
provide protection from disclosures based upon privacy and security concerns.
THIS OPTION PROVIDES NEEDED REFORM TO ASSURE PROTECTION OF SENSITIVE
INFORMATION THAT MIGHT LEAD TO IMPROPER DAMAGE AND HARM TO
LITIGANTS AND PARTIES SEEKING BANKRUPTCY PROTECTION.
2.Require less information on petitions or schedules and statements filed in bankruptcy cases.
THIS OPTION MAY NOT PROVIDE DEBTORS ALL THE INFORMATION NEEDED TO
ASSURE THE FULL AND MEANINGFUL ENFORCEMENT OF THE DEBTORS' RIGHTS.
3.Restrict use of Social Security, credit card, and other account numbers to only the last four
digits to protect privacy and security interests.
AT A MINIMUM, THE COURT SHOULD ADOPT THIS OPTION AND PROVIDE SOME
PROTECTION FOR LEGITIMATE PRIVACY INTERESTS, ALTHOUGH A GREATER
DEGREE OF PROTECTION IS PREFERABLE.
4.Segregate certain sensitive information from the public file by collecting it on separate forms
that will be protected from unlimited public access and made available only to the courts, the
U.S. Trustee, and to parties in interest.
THIS OPTION MAY PROVIDE SUFFICIENT PROTECTION OF LEGITIMATE PRIVACY
INTERESTS. A BETTER APPROACH, THOUGH, MIGHT BE TO ASSURE PROTECTION
UNLESS A LEGITIMATE NEED IS PROVEN AFTER APPLYING A BALANCING TEST
OF INFORMATION SOUGHT AND REASON FOR THE REQUEST COMPARED TO
INFORMATION SOUGHT TO BE PROTECTED AND REASONS TO PROTECT THE
INFORMATION. THUS, MUCH LIKE DELIBERATIVE PROCESS PRIVILEGE ISSUES AT
THE FEDERAL LEVEL, A COURT WOULD FIRST ALLOW THE PERSON TO WHOM A
COURT FILE RELATES HAVE AN OPPORTUNITY TO OBJECT TO RECORD RELEASE.
THEN, IF THE PERSON TO WHOM THE INFORMATION RELATES CAN SHOW
LEGITIMATE PRIVACY OR SECURITY CONCERNS IN SOME OR ALL OF IT, THE
SEEKING PARTY CAN ATTEMPT TO PROVE A NEED THAT OUTWEIGHS
LEGITIMATE PRIVACY CONCERNS. SOME INFORMATION SHOULD HAVE
PRESUMPTIVE PROTECTION, SUCH AS SOCIAL SECURITY INFORMATION,
MEDICAL RECORDS, AND THE LIKE.
Appellate Cases
1.Apply the same access rules to appellate courts that apply at the trial court level.
COURTS SHOULD ADOPT AN ACROSS THE BOARD RULE APPLYING TO ALL
FEDERAL COURTS.
2.Treat any document that is sealed or subject to public access restrictions at the trial court level
with the same protections at the appellate level unless and until a party challenges the restriction
in the appellate court.
THIS OPTION DOES NOT ASSURE UNIFORMITY OF TREATMENT. THE PRIOR
OPTION SHOULD BE ADOPTED, NOT THIS ONE.
No. 56
11/29/00
Chesapeake, VA
The accessibility of files from a particular website from anyone on the Internet is not a simple
on-off function. Through judicious use of farewells and IP address controls it is possible to
achieve the benefits of electronic transfers without providing instant access to every citizen
in the world. In the interests of protecting serious information about people's lives from
becoming fodder for gossip, we must make sure that gaining requires a level of effort and cost
similar to that associated with traveling to the courthouse. I would recommend a registration
process with a subscription fee (which would become a customary cost in bona fide legal work).
This is not to say that there should be additional controls placed upon the information once it has
been accessed, but there should be a requirement to identify who is responsible for the posting
(analogous to paid political advertising). While there may be adventurous individuals who
would go to lengths to find and post information at more public sites on the web, their
traceability would at least allow motives to be exposed for public review.
More important than easing access to information for those who have the resources to use the
Internet, I believe there must be rules which require each courthouse to ensure that all records are
open to the degree of "free" inspection which paper documents have traditionally been subjected.
That is, if electronic files are acceptable to the court, then one or more workstations allow the
public to access these files at the courthouse. Additionally, since search engines relieve the work
load of attorneys using web access (thus giving them advantage), search engines should be
available to those accessing files at the courthouse.
No. 57
11/29/00
Lyman, SC
Anonymity is the problem w/ unrestricted internet access to stuff. If the person wanting
information were as visible on the net as s/he is when going into a courthouse, there would be no
problem. The people who violate privilege on the internet are the same who'd TRY to do it
out in the real world; most often they're too cowardly to try, or too inept to succeed. The problem
with the internet is the bad guys have a cloak of invisibility more through than an ordinary
disguise would offer. And, as for catching those who violate reference privilege, the cost would
prohibit the search: there's enough money to track down someone who steals from a corporation
or threatens a person in a position of political power, but no money to hunt down violators of
personal information, since protected rights are primarily those of PROPERTY, not the
reputations or privacy of ordinary people. It's a terrible dilemma, and no single answer will
suffice. I'd say the same restrictions must govern internet access to personal information as
govern in-person access. Surely the technology exists so I'd HAVE to leave a cookie when I'd
looked at a person's file. And if I don't want my presence known, I'd better not be there . . .
Skulking around is a tacky way to conduct life! Thanks for giving me the opportunity to clarify
my thoughts on this matter.
No. 58
11/29/00
Prescott, AZ
The importance of the Internet is the providing of information. If one may access information by
directly requesting photocopies of it, it makes little sense to say that one can not get the very
same information from the Internet, if available. You should be able to get exactly the same
information, no more and no less. The manner in which you get it makes no difference.
No. 59
11/29/00
Stanley D. Helsinki, Esq.
Boston, MA
I am certainly for unfettered access. The standard should be the same standard as is applied in
allowing cameras into courtrooms. The issue is not of privacy, but accessability. A document is
either public or private--no shades of grey. It also further spreads the nations resources to those
who may not have access.
No. 60
11/29/00
Los Angeles, CA
I would like to urge you to keep court records, for all types of cases, from being made available
electronically to the general public. I believe the current system sufficiently addresses the
concern for public access while making it substantially burdensome for ill-intentioned people to
access this personal and potentially harmful information. The posting of this information on
the Internet would make it increasingly easier for criminals to commit their crimes, by providing
social security numbers, personal contact information, employment, and financial information at
the click of a button. The files now exist on paper in courthouses to provide a check on these
types of nefarious individuals, to dissuade them from obtaining this information by requiring
them to interact with gatekeepers at the courthouse. With the court cases on available on the
internet, however, there is no longer a deterrent to accessing this information. Please respect the
privacy of those who place their trust in the United States Justice System, and keep court records
filed safely in the courthouse.
No. 61
11/29/00
Peter Nikitas
State Bar of Wisconsin Individual Rights and Responsibilities Section Board Member
I believe that one should analyze individual privacy data different from corporate data. Starting
with individual data, one may see great harm in disclosure of medical records and SSN's. A U.S.
statute prohibits unauthorized SSN disclosure. The ADA prohibits disclosure of worker's
medical information beyond strictly circumscribed exceptions, whether or not the worker is
disabled. See 42 U.S.C. secs. 12112(d)(3)(B - C) and 12112(d)(4)(C), and Cossette v. Minnesota
Power and Light, 188 F.3d 964 (8th Cir. 1999). Given that, and given that the Rehabilitation Act
reads along parallel lines with the ADA, it would appear that the Judicial Conference proposal
runs hard aground on legal shoals.
The IR & R should oppose broad disclosure of individual private data by federal courts. It
should oppose any effort to condition suit on waiver of privacy rights. In fact, it should support
efforts to provide open-eyed, Miranda-like warnings to federal court litigants of the use of the
data they file in court. See Minn. Stat. sec. 13.04 subd. 2 for an example of such a warning, and
sec. 13.08 subd. 1 - 4 for remedies.
No. 62
11/29/00
J.C. Desmond
Career Law Clerk to Federal Judge
Savannah, GA
I've been a lawyer for 17 years, 8 spent in private practice and 9 as a law clerk at the U.S. District
and Appeals Court levels. I'm currently the career law clerk for a federal district judge in
Savannah, Georgia. So, I know something about this topic. I've also seen enough to be
convinced that an open government is a healthy government and that when private parties use the
judicial branch to resolve their disputes they rightly make their "private" papers public
documents. "Sunshine is the best disinfectant," and far too much evil, public and private, is
concealed by "privacy" and "secrecy" concerns. Example: Ever try and find the opinion
dismissing the government's case against Daniel Ellsberg because Nixon's "plumbers" broke into
Ellsberg's psychiatrist's office? Have you read the "Abuse of Power" tape transcripts that Nixon
spent 20 years and $2 million trying to suppress?
Unlimited access to public court records also advances "citational accountability," a concept
explored in J.C. Desmond, "Zen and the Art of Law Clerk Maintenance," 4 Ga.Bar.J. 65 (June
1999) (if judges were compelled cite to the record document on which they rely to construct the
"facts" portion of their opinions, less "smoke" would support judicial conclusions, and the public
would be better able to monitor judges who'd otherwise smuggle their personal politics into
cases). Without unfettered access to court documents, "judicial legislation" and judicial
politicking would be more difficult to detect.
I'm therefore in favor of the following proposals as listed on your web site:
Civil Case Files:
No. 1 (place burden on litigants to partially or fully seal records, but promulgate a national rule --
hence, option 4 -- allowing partial (e.g., last four-digit) tax and credit card (etc.) numbers, but
keep this exception narrowly defined. As for options 2 and 3 -- NO! Also, don't nickel and dime
people - skip the 7 cents/page access charge. It'll cost too much to bill and collect and will
be a huge nuisance. I want a free and open government, not yet another layer of wasteful
bureaucracy.
Criminal Case Files:
No. 2 makes sense and is well worded.
Bankruptcy Case Files:
Bankruptcy has lost its stigma, and is abused by many.
Illumination of debtor data assists those who'd otherwise detect and illuminate fraud, not to
mention serial filers, liars and cheats. "Honest" debtors lose here, but that pain's far outweighed
by society's gain. Other than the truncated social security and credit card measure, I'm opposed
to expanding Rule 107 authority.
Appellate Cases:
I support options 1 and 2 and find them well-worded.
No. 63
11/30/00
Healdsurg,CA
Civil Case Files:
Establish "levels of access" to certain electronic case file information
Criminal Case
Files: Provide limited electronic public access to criminal case files
Bankruptcy Case Files:
Restrict use of Social Security, credit card, and other account numbers to only the last four digits
to protect privacy and security interests.
-and-
Segregate certain sensitive information from the public file by collecting it on separate forms that
will be protected from unlimited public access and made available only to the courts, the U.S.
Trustee, and to parties in interest.
Appellate Cases:
Treat any document that is sealed or subject to public access restrictions at the trial court level
with the same protections at the appellate level unless and until a party challenges the restriction
in the appellate court.
No. 64
11/30/00
I think that we must categorize the various pieces of information found in case files. Anything
that would normally be protected under existing laws should still be protected if it is found in a
case file. A few examples of such information would include trade secrets, proprietary
information, and medical records. However, it is also essential to the successful functioning of
our court system t o be able to research and examine rulings and other legal precedents. Thus,
the kind of information that relates directly to the charges, the verdicts, and the legal and logical
basis behind those verdicts should be publicly available.
On the issue of use of the internet to disseminate the public access portions of case files, I see no
legal concerns here--it is merely a matter of methodology. If something is public, it's public. The
internet is simply a more efficient means to make it so. Protected information, on the other hand,
should not even be stored in a computer that might be connected to the internet (for security
reasons), let alone be purposefully disseminated therein.
Thanks for seeking public comment on these issues.
No. 65
Walnut Creek, CA
All court records that are deemed to be subject to public access should be available on-line. It
should not be required that the requesting individual physically visit the corresponding court.
If the information is a matter of public record, the ease with which the information may be
obtained should not change the classification of the information.
Additionally, if records are made available at the court via computer without charge they should
also be available remotely without charge.
In the interest of protecting and preserving the legal process it may be desirable to not post the
information until the conclusion of the case and the parties have had an opportunity to request all
or part of the record be sealed.
This should not be deemed as approval to conceal plea agreements that may impact the due
process of other defendants.
It would be reasonable for certain information to be deemed not subject to public access, but this
should be consistent between paper and electronic documents.
No. 66
11/30/00
Santa Rosa, CA
The contents of civil cases should be completely available. These issues and their resolutions
provide data for research into the impacts of laws and the courts on the economy, the individuals,
and society as a whole. It also provides the background needed to create models to predict the
possible effects of proposed laws and regulations or identify social trends.
In the area of criminal records this should become more restrictive due to privacy considerations
and the possibility of violations of the public peace in publishing names and addresses. For this
my opinion would be to publish the court records but to strip them of names, addresses, tax and
financial information. The problem is that some records will be rendered useless for any purpose
by removing this data but it is better for our society to err on the side of over protection of
privacy than it would be to under protect an individual's privacy.
I would also tend towards over protection for the simple reason that mistakes are made. People
are arrested for crimes they did not commit (and hopefully released) and published records can
contain mistakes in the form of the wrong person's name being associated with a case that they
were never involved with. This has happened with the publication of the names and addresses of
child molesters, some times with tragic results for that person.
Thank you for your time.
No. 67
11/30/00
Vidalia, GA
Records of trials etc. are a matter of public record and should be made available to the public
on-line.
Where there are matters that the trial court or appellate court has deemed confidential, for what
ever reason, limited access should be applied, but these documents should be available for
legitimate use and by legitimate parties, excluding the curious.
No. 68
12/01/00
Binghamton, NY
As an information security professional with specialization in electronic information security, I
would like to caution the Government against making 'user-friendly' access to this particular
subset of the public record. The age-old tendency of persons of low character to use a little
knowledge about an individual to gain trust and control over that person has gained new
practitioners in the age of electronic commerce. There will be tragedies. Make people go to the
files, or at least a viewer at a Government office. It will, in some small degree, discourage the
laziest who are also sometimes the least ethically scrupulous.
No. 69
12/01/00
La Verne, CA
No one should have access to credit card numbers, social security numbers, bank account
numbers, or any personal or financial information such as creditors without a court order.
No 70
12/01/00
Who would have guessed that the electronic version of public records could or would be treated
any different than the paper equivalents? Why should these records be treated different? The only
reason I can come up with is arrogance. Arrogance may lead some people to believe that these
public records, albeit "public", should only be truly available to those that either have the
intricate knowledge of when and where these records can be obtained, or have the will to
research this subject to find out.
No. 71
12/01/00
Milwaukee, WI
I support full and open exposure of all case files. But penalties against those who discriminate or
otherwise use that info to the ill of those covered. I would go so far as to say "eyes only" with the
data--it can be read, but not used.
No.72
12/01/00
San Francisco, CA
I've given this sort of thing some time. The problem as I see it is that public records, in electronic
form, give a person who intends to violate privacy of persons mentioned in the records a new
found technical ability to abuse a mass audience of persons from these records. Given my
understanding of the problem, a simple solution would be to simply limit the number of public
records that an individual or corporation could access over a given time period. There are a
number of technical ways this could be done. Likewise, there are a number of ways that someone
could skirt around this. I don't claim to think that this is a complete solution, however I think it
could quite possibly be a partial solution.
No.73
12/01/00
I have read that this is about releasing court documents to the web. Since such documents may
contain info such as names, addresses, social security numbers or even, in bankruptcy cases, bank
account numbers, I would like to point out that identity theft is becoming increasingly common.
As long as info like this is a principle means of personal identification, it behooves you to
recognize that releasing such info to the general public simply makes identity theft that much
easier. Until biological (fingerprints, voice analysis, retinal patterns) info becomes the principle
means of identification, it seems to me that go slow is the order of the day. Otherwise you are
simply handing thieves, sharpsters and ne'erdowells the keys to people's bank accounts. With the
worldwide reach of the internet, such malcontents do not even need to be in the same country.
This vastly increases the pool of prospects for such identity theft.
No. 74
12/01/00
Palo Alto, CA
All this data should be sealed, and not accessible to the public. In many court cases, there is a lot
of data which would normally be private, and which should not be freely "published". The only
exception should be where public safety and welfare are at risk if data are sealed. For example, if
someone is convicted of fraud, their identity should be public, so that the truth can be discovered
later by anyone who searches for information about that person. This would help people conduct
due diligence prior to making various business and personal decisions.
No. 75
12/01/00
Boulder Creek, CA
My recent experience with jury duty convinced me that the court had absolutely no concept of
data security. I stood near the name-tag-printing machine and could have easily written down
many valid name/SSN/driver's license number combinations. My concern increased when a
questionnaire was given the jury pool, consisting of a number of personal questions ('have you
ever seen a psychiatrist?') The same sheet asked personal questions about me and my girlfriend,
whose answers I refused to write on the same questionnaire or link to my own. Given my
experience with the jury pool information above I conclude data security in the court is
appallingly lax, and the court's attitude of benign neglect shows they are not interested in any
juror's rights. A mechanism to protect jurors' personal data, obscuring any and all address,
telephone, SSN and driver's license data is urgently needed. Further, a law holding judges
personally responsible and liable in tort for data security in their courts is needed: if the judge is
not personally responsible for data security, data security will not happen.
No. 76
12/01/00
Plano, TX
This is a really tough question. These records need to remain open to the public. At the same
time a computers ability to download these records in bulk and then compile lists of data allow
for several type of misuse. The problem the internet imposes is the access to very large numbers
of cases from long distances. If physical access is required, discrimination is limited to what one
person can carry away, thus providing a physical limit the degree of discrimination of this
information. Since both objections cannot be fully met, I suggest a form of unsatisfactory
compromise. Make the court records available on the internet, but limit download to (say) 2 cases
per IP address in any 24 hour period. I realize that this can be circumvented but that requires
effort. This would allow public access to a case where interest is high. It would also inhibit mass
compilation and cross referencing of this data. Also logging the requestor's IP address of each
download and possibly (also) his MAC address could help in the case of criminal abuse resulting
from access to these files. I wish I had a better idea.
No.77
12/01/00
San Jose, CA
Electronic dissemination of court documents should be limited in all cases where any harm may
befall an individual if the information is widely available. Court documents are made public such
that an interested party can investigate a particular trial proceeding. Through the use of
computers, the process of gathering information can be vastly simplified, and damaging
information can quickly be harvested on a large number of people.
An individual can be harmed by dissemination of personal information, such as Social Security
numbers. Anyone reasonably proficient with data searching will quickly be able to find such
information, and combine it with other freely available information that could be used to commit
crimes against an individual. Credit card fraud is a prime example of persons being harmed
through wide dissemination of information, that, although it is not confidential, should not be
widely available.
No. 78
12/01/00
San Angelo, TX
I believe that this is a matter of grave importance in our nation's future. By making these records
available on the Internet, we are allowing full access to documents that all citizens are currently
allowed. By placing them in a downloadable, platform-neutral format, we would be empowering
those who would normally be unable to access them. Technology that functions as such a great
equalizer as the Internet, should be embraced wholeheartedly by our government. Doing so
would demonstrate to our country's citizens that they ARE a part of our great republic.
No. 79
12/01/00
Brian Lee Corber, Esq.
Panorama City, CA
Court filings are generally public record unless otherwise made confidential via court order. All
such filings should be made easily accessible. Using the Internet to make files easily accessible is
a wise plan. Why? It gives easier access (1) less expensive access because one need not travel to
the court house to view the files which could be great inconvenience if a Los Angeles resident
wanted to view a file in the Southern District of New York (2) if only access is physical, in
person, then only one person can access the files at a time--via internet multiple parties can
access simultaneously (3) less use of non-renewable resources, like gasoline, to travel to and
from court (4) less expense to a member of the public who might want to make copies of a file--
court's generally charge 50 cents and up per page for copies (5) greater ability to do research
because you can access files from one location more swiftly than doing an in-person access (6)
would help with determination, by individual seeking access, of existence of particular files
rather than running to each district court (7) decreased personnel costs--i.e.: less need for in-court
clerks to just retrieve and hand out files (but more need for those skilled enough to maintain the
system) (8) might lead way to electronic filing system which would be more immediate than the
old way of filing papers, pleadings and documents (9) GREATER ACCESS TO FILES MEANS
GREATER ACCESS TO THE SYSTEM OF JUSTICE, EASIER ACCESS TO SYSTEM OF
JUSTICE MAKES LAY PUBLIC MORE COMFORTABLE WITH THAT SYSTEM, WHICH
IS THEIR SYSTEM
No.80
12/01/00
Lancaster, Ca
I believe that both civil and criminal records should be made available to the public. But I
believe that any information contained in those files that would identify a specific individual
should be removed. The records should not contain addresses beyond the resolution of a state.
They should not contain social security numbers, drivers license numbers, telephone numbers, or
as I said any other piece of information that could be used to identify an individual. Where this
information is applicable to a business I believe that it should be included. I believe that a
business operates as a public entity and should be open to public scrutiny. Additionally I believe
that the personal information removed from public record should only be made available upon
approval of a request to a court.
No. 81
12/01/00
Nashua, NH
Given that the same information would be made available in both electronic and paper forms,
there should be no reason to restrict access to the electronic version. It would allow research
without the danger of damage to documents, and by more people than paper copies would allow.
The law has always been in place for helping people; restricting electronic access in no way helps
people and, in fact, could harm them if they need immediate access to documentation that has
been restricted.
No. 82
12/01/00
Manassas, VA
"Should electronic case files be protected from unlimited public disclosure, or should they be
treated the same as paper files?" Electronic records of court cases should not be openly available.
Currently multiple corporations keeps profiles about millions of Americans. These profiles track
things such as race, sex, age, credit history, lists of purchases, familial statistics, hobbies and
interests, even tracking use of the world wide web. By allowing unlimited access to these files at
a low cost, said corporations will be able to assimilate court records into their already vast
databases. The data kept in these databases will become far more personal than ever before.
Corporations will be able to target consumers at a depth never before imagined, and it is unlikely
that any of this targeting will be in any way beneficial to the people. The myriad of categories of
information that can be gleaned from court records could create a host of new kinds of
discrimination, as companies look for new reasons to exclude those that they find undesirable.
Keep these records open to the courts and law enforcement only. Anything else could lead to a
gross destruction on America's collective privacy.
No. 83
12/01/00
Menlo Park, CA
Please do NOT allowing web-publishing of personal records, even if those records on paper are
considered public. At present, paper records are effectively protected by the inconvenience of
making physical copies in person, and physical copies are inconvenient to redistribute. If the
same information is available on the web, it will be far easier to obtain, to organize and cross-
reference with other information, and to copy at will...there will be no more privacy at all. The
courts must distinguish between information which can be obtained somehow (with sufficient
motivation and cause) and information which is effectively cost-free, available to marketers,
scam-artists, overseas companies, and anyone else with a profit motive and possibly without
ethical or legal constraints. Not everything "public" should be in the latter category.
No. 84
12/01/00
Toronto, Ontario Canada
I'm an American Citizen, so I feel the right to comment, at least. Perhaps it would be best to
create a subclass of public information. To give an idea, it might be 'replicable' or 'transmissible'
information. As an example, take Social Security Numbers. While they are a mater of public
record in some court cases, removing them for the publicly accessible online data and marking
them non-transmissible (baring the moving of data beyond the person or corporation who
retrieved it from the courthouse) might be the best option. It would allow the court case data to
be available online, for quick reference by law students or other researches, but providing a
shallow 'barrier to access' in the effort needed to go to the courthouse and retrieve the document
to obtain non transmissible information. It should me noted that monetary barriers to information
simply remove it form the public which is individually poor, and restrict access to corporations,
large institutions and governments. A procedural barrier which treats all applicants equally is
probably the most effective. I'm not happy with the idea of my information being so casually
available, but I also see the need to balance that against the disclosure of information about
fraudulent activities of an individual.
No. 85
12/01/00
Durham, NC
I find it alarming that THE most private form of personal information, one's Social Security
number, is available on the internet in a few States. If someone needs legal information regarding
ones SSN, they can look it up the old fashion way. With the advent of the Information age, we
now have a very powerful tool, the Internet. Although it truly is a wonderful and powerful tool, it
is also a double edged sword. I've been in the computer/IT business for over 26 years, and have
seen this business transform into mind boggling advancements, but we must act prudently and
responsibly on private and personal
information. I have been directly involved in numerous breech's of security and hacks
throughout my career, and have seen the damage that evil people can do with credit card numbers
and bank accounts. We MUST stand firm on keeping SSN's OFF any part of the information
highway.
No. 86
12/01/00
Plant City, FL
I definitely oppose electronic public access to Federal Court case files. Personal information such
as medical, financial, tax records, etc. are just that.....PERSONAL. The futures of the citizens of
the United States are at stake here. What chance does someone have for a job, or credit, or
insurance if anyone can just get on-line and look up this person's every movement throughout his
or her life? Competition in the world is so great right now that just the slightest flaw in
someone's background can stop him/her from being considered for employment, and that person
might be the best person for the job and has worked hard at making a better life for his/her
family, but could be turned down because of some old piece of information picked up off the
internet by the potential employer. With hundreds of individuals applying for every good job in
this country, what chance does this person have?. Opening this information to the world will be
crucifying a person for the rest of his/her life for whatever mistake or failing they may have done
in their life. It is setting that person on to a road of failure. How can we ever expect people who
are down on their luck to ever get on their feet and make the choice for bettering their life when
the internet/court system is going to mark this individual with a "red X" on their backs for life. I
didn't even get into another important area, and that is our personal financial information being
on-line. There are so many computer wizards in the world right now, we are just opening the
door to thievery. If we have young people smart enough to break into the government files and
into the master of them all, Microsoft, then what could happen when these people get access to
personal information on millions of people whose lives and information is just laying open to the
world for reading on the web. I think you get the picture. I do not agree and am voicing my
opinion not to allow electronic public access to Federal Court case files. Thank you for listening.
No. 87
12/01/00
Duvall, LA
The Internet offers great benefits in involving the public in the judicial process. At the same time
it offers great pitfalls. I believe that all public court records should be made available over the
Internet but that certain personal information should be removed such as home addresses, SSNs,
Driver's License numbers, home telephone numbers, banks account numbers, credit card
numbers and the like. I also believe these should be removed from records publicly available at
the courthouse unless the requesting party can prove a legitimate need to know them.
No. 88
12/01/00
Mobile, AL
After experiencing the Alabama State Court system's electronic access, I cannot tell you how
convenient, how accessible, and how informative the whole process is for the entire law office.
The paralegals rely on this tool heavily, rather than bogging down their
time by trying to get information over the phone and, thus, bogging down important court
personnel, they access cases on the internet, and then decide it they need to follow-up with
speaking with the court clerks. Most of the time, they find their answers right on
line. Most of my access, as a legal secretary, is looking up service information on defendants,
attorneys making appearances for those defendants, and other valuable information. It is just like
going to the court clerk's office and peering right into the court docket.
No. 89
12/02/00
Port Orange, FL
Full disclosure of public information is vital for the safeguarding of our rights.
Certainly, there are issues which at times can trump this concern, such as the protection of an
individual's right to privacy. The important step to be taken is to compare the current system -
generally considered as reasonable - with any proposed system to be implemented. It would
appear that the primary concern here is the reduction in cost to find information that previously
had a rather high barrier for obtainment. The solution is to determine that information deemed
"critically private" and make that available separately, with significant safeguards in place, or to
find some way to make the high cost exist only for the "critically private" data. For example, a
web page might contain the entire transcript of a trial, save for private information such as
residence address, phone number, etc. of witnesses. These certainly could (and, in my opinion,
should) be made available online, using simple tools such as secure servers. A link to the relevant
information would release the information only when security information has been verified;
perhaps the user must register and be accepted before he/she is allowed access.
There are certainly many ways that control could be reasonably and lawfully instituted. Perhaps
personal (but public) data could be made available only in person at the courthouse. While not as
"open" as access through the internet, the higher cost has been relegated only to that portion
where security requires it. This is certainly preferable to eliminating all electronic access to
public information. My chief concern is that as much public information be made available to the
common citizen as possible. There should be virtually no barrier to getting general information
that is of public record. And whatever information exists that *should* be protected, should only
be protected as much as necessary. As there exist classes in court records today (sealed and
public, for example) we could also have classes for specific parts of court records. General
proceedings would be "public"; personally identifying information: "protected"; information that
could contribute to illegal discrimination (such as sexual orientation, medical history, etc):
"secure". These are three that come to mind. Each classification would then be fitted with access
controls appropriate for that classification. I firmly believe a thoughtful approach can enable free
flow of information while protecting individual rights. Thank you for the enlightened attitude
toward the freedom of information and the consideration of citizens' rights.
No. 90
12/02/00
Gainesville, TX
Public access to court information is predicated on the concept that the activities of the
Government (in this case, the judicial branch) are subject to public scrutiny. To my mind, the
degree of disclosure should be governed by the degree of Government involvement in the case in
question and, more specifically, whether the Government is involved as a party to whatever
action is being recorded. With that in mind, there is (generally) a clear distinction between Civil
and Criminal processes. Using a divorce as an example of a civil action, we should consider that
the Government's sole role is as arbiter and/or decision maker. The actual parties involved are
Mr. and Mrs. Doe, and I would be frankly astonished if there is any public interest being served
by a full disclosure of any of the material contained in the private action of these two individuals.
The fact of the granting of the divorce is public record, an action taken by an arm of the
Government, and should be available. The listings of property, allegations that Mr. Doe is
sleeping with the babysitter, or that Mrs. Doe is a bizarre woman of odd tastes, while of
considerable titillating "human" interest, is of no value whatsoever in providing the public with
the opportunity to "watchdog" the Government which, at the end of the day, is the purpose of
"open" Government. This same concept applies to monetary lawsuits or requests for relief, all
the way from fender-bender traffic accidents up through and including corporate fistfights over
who owns multi-billion dollar patent rights. Final rulings should be available, but not all the
filings, personal information, etc., etc., etc. Note, this is not to say that each or all of the parties
can't go public with whatever they're whining about, at least to the degree that it becomes
libelous or otherwise actionable, but it should not be a Government function, nor is there a valid
public interest in routinely providing the information in electronic form for whoever can access
the public web-site. Any civil action involving a Government entity as a PARTY, however,
should be electronically available, including all filings, etc. I think that the valid public interest is
pretty self-evident in this sort of case. Examples include quasi-criminal functions (asset
forfeitures, recovery of costs of prosecution, IRS actions, freezing foreign accounts, etc.) and
actions in which a private citizen or interest group sues some governmental entity (or vice versa).
The involvement of a government entity as a litigant is presumptively of public interest. And
with that, we come to Criminal actions. ALL criminal actions involve the Government as a
litigant, and therefore ALL criminal actions should be immediately and easily publicly available
for review to the degree that it does not interfere with an ongoing investigation. That is to say,
unexecuted warrants, sealed and/or pre-arrest indictments or information, and other pre-trial
matters involving an ongoing investigation should NOT be available. There is a long standing
series of rulings which (correctly) establishes that the public's interest in having a government
capable of engaging in investigation of crime FAR outweighs the public's interest in immediate
access to information. Note that ALL this information should become immediately available on
substantial completion of the investigation (usually indicated by the arrest and charging of the
defendant), with the exception of the identity of confidential informants or other persons under
threat of harm unless the trial or appellate court determines that identity must be provided for a
fair trial. As to an individual's so-called "Right To Privacy" as to his criminal record - he has
none. In this case, the intersection of a citizen with the most intrusive and potentially dangerous
arm of the government (Law Enforcement) is of the highest degree of public interest, and should
unquestionably be subject to the most stringent public scrutiny. Now, I believe there should be a
mechanism in place to expunge any record of any arrest which does not result in formal charging
or which a trial court determines was made without warrant AND without probable cause, but
that's another issue for another day. As to the 40-something who is whining because he got
caught sticking up a convenience store when he was 19 and it's still on file -- tough. Don't be a
criminal, and this sort of thing doesn't happen. This is not a game and there are some things in
life that you just don't get a "Do-Over".
No. 91
12/02/00
Sunnyvale, CA
Hi, thank you for asking for opinions on this matter. The following is my opinion on this
particular topic: You could keep certain aspects of Public records confidential with the use of
software that takes out certain fields, such as: address, soc sec #, etc, before uploading the
information to the Internet. Protecting privacy is important for safety and security reasons -
wouldn't you be concerned if your daughter's name and home address were posted onto the
Internet (which is sort of like a modern-day bathroom wall)? Of course you would be concerned.
I believe citizens should be protected just as you would protect your own daughter. It's a matter
of common sense: easy access to information is not more important than privacy as it relates to
safety and security. Also, as a customer of mothernature.com (which unfortunately went
bankrupt) I was personally stunned when I read the bankruptcy Court had posted on a website the
salaries of all mothernature.com's employees. That's a violation of an employees' rights to
privacy. The employees lost their jobs and then the court posts their salaries on the website so
headhunters can find these out, without the permission of the employee. Salaries shouldn't be
released unless an employee allows it to be released - this is the rule that companies operate
under, so I believe the government should operate under this same rule. Part of the employee
salary negotiation process is the right to decline the release of prior salary information in order to
secure a salary which pays for what your current duties will be, not for what your past duties
were at a cash-tight-dot-com. And I think this applies to everyone: no home address should be
provided, not even for a director, officer, or board member. Even if I had lost money with
mothernature.com (which I didn't), I would maintain the same opinion: I think safety of all
citizens of this country should be your first priority when considering how to handle this matter.
Privacy should be protected.
No. 92
12/02/00
Southbury, CT
Although it seems that it would be better to censor personal information such as Social Security
numbers, addresses, phone numbers and medical records, it also opens up a pandoras box of
problems regarding enforcement and the risk of parties questioning the guidelines that will
eventually be drawn up. Although I personally do not enjoy the concept of someone potentially
having full access to my personal information via court documents, I believe that the principle of
the thing takes precedence and thus there should not be any sort of censorship of the material.
Perhaps a full recording of who accesses the material or monetary restrictions would be better?
No. 93
12/02/00
Owensboro, KY
It is my belief that some of the information contained in most court-related files is too sensitive
to be freely distributed electronically, and that some of the information is really not suitable to be
accessed in the existing manner. With a name and a social security number, it is but a few short
steps to assuming a person's identity and destroying their name or financial status. That is a
liability that neither you nor anyone would like to assume, I am sure.
No.94
12/02/00
Menlo Park, CA
The arguments for not providing full access to criminal case files are not compelling.
The concerns are exceedingly vague, and seem to stem from a fear that criminal defendants
might obtain public information about cases in which they are involved, information to which
they are obviously entitled and in which they have a legitimate interest. Reduction of the rights of
defendants generally is an inappropriate argument against disclosure. There is a more real issue.
Widespread public access to criminal case files allows for automated data mining. This is both
good and bad. On the one hand, automated analysis is a valuable tool for researchers and
journalists evaluating the effectiveness of law enforcement and the judiciary. On the other hand,
it is likely that widespread availability of such information will lead to the equivalent of arrest
records being searchable online. As a compromise, I would suggest that in criminal cases in
which a defendant was found guilty, all available information should be on line. In criminal cases
with other outcomes, the defendant should be offered the informed opportunity to easily
request that the record be sealed. This is consistent with the historical policies of the courts and
public policy.
No.95
12/03/00
Los Angeles, CA
Whatever the solution to this potential problem, it should not prevent the average user from
accessing the information if criminals can get the information as easily by other means. Also, an
elite class should not be set up as is the case here in California with DMV information. Here in
California, anyone can run a license plate simply by paying $30 to an online service, despite the
fact that the information is available inexpensively from the DMV by anyone willing to comply
with a host of restrictions and a "legitimate purpose". $30 buys the way around the law. Simply
creating a class of people who get the information based upon ability to pay and then assuming
those individuals will make better use of the information and not use it criminally is a mistake.
Specifically, I would suggest a form be allowed to be filed with each pleading containing a social
security number, bankruptcy record, medical record, etc. so it is filed similar to a document filed
in camera. Then the person scanning the document can make a photocopy of it and strike with a
black marker the specific information specified on the form and then scan the document that way,
in a manner similar to how FOIA requests are handled on occasion. Perhaps to save the
government expense, the redacted copy can be filed with the request and then the unredacted
copy goes in the file and the redacted copy is scanned. Care should be taken that only very
specific identification is allowed to be removed to give the public the greatest possible benefit of
electronic records. All of this having been said, this is an attempt and fixing a symptom and not
addressing a cure along the lines of the way credit information companies keep records based
upon social security numbers, etc. Passage of laws in that area would be of the greatest benefit in
the long term. Identity theft should be targeted by changing the way records are kept and people
are identified instead of passing stricter criminal laws which prove useless or further restricting
public access to public documents.
No.96
12/04/00
Laconia, NH
Court record dealing with any financial litigation should never be placed online. There is already
enough evidence that a citizen's financial information on the internet can lead to financial
mayhem or ruin. Placing this information in an easily accessible public forum is an infringement
on a person's right to privacy.
No. 97
12/04/00
The law I want will say that no secret testimony will ever be allowed as evidence in a court case.
No. 98
12/04/00
Zachary Mosner
Ass't Attorney General
State of Washington
Bankruptcy & Collections Unit
The institution of RACER, and to a lesser extent PACER has made equal access to justice more
than a sound-bite--it is becoming a reality. No matter where you are in the country, you can
educate yourself about a case by reading the pleadings filed therein. No longer are you dependent
upon someone else to walk to the courthouse and report back to you across the country on what
concerns you expressed. The unlimited, in-depth electronic viewing of cases in bankruptcy is a
great "equalizer". There is no longer a jurisdictional "edge" for those who would choose the
forum non conveniens of filing in a Delaware or New York court in order to gain some
competitive tactical or economic "edge" wholly unrelated to the legal merits and bases of the
case. In short, the RACER/PACER system is establishing a level playing field. It lets people who
are not lawyers read court documents at their leisure, initially saving the cost of hiring a
professional. They can choose a more measured response to matters by first being "proactive" in
a case on their own. This will undoubtedly cut down on needless filing of pleadings and litigation
on points already in controversy through other parties in interest. As this technology expands and
is refined there may well be opportunity to identify areas of actual abuse and establish rules to
cope with these issues. But there should be error on the side of full disclosure. It is a rule that
already appropriately pervades our legal system--it would be disingenuous to change this
standard because an electronic system would "truly" open already public files to "too many
people" when it should have always been readily available on an unlimited basis. There are many
abuses in legal systems around the country today where unethical loan companies, lawyers,
bankruptcy petition preparers and other "professionals" cull public records of foreclosure, tax
liens, etc. to secure an economic gain or advantage to the detriment of unsophisticated people in
distress. The obligation of our legal system is to curb those who abuse the system. But, to start
off an exhilarating change in court technology by restricting it, or in some way thwarting access
through rule-making is an effort to "shoot the messenger" without balancing the right to access
the message. We must embrace change in this field and accelerate our work in electronic
information retrieval/access for the courts. The opinions expressed herein are personal and do
not reflect policy or positions of the Office of the Attorney General.
No.99
12/04/00
Virginia Beach, VA
Allow internet access to court cases. Current laws required to be amended to restrict information
to individuals with an identifiable persona grata.
No. 100
12/05/00
Long Beach, CA
This idea is only palatable if you plan to require purchase of the information. That is, copies of
court documents from the court house usually are accompanied by a fee. Visitors who wish to
obtain information should be required to log in, providing information about themselves and pay
using a credit card. This way if the information is used in some fraudulent manner, the persons
involved in acquiring the data would have left some electronic fingerprints. I believe strong data
encryption should be used and private credit card and ss# information should be omitted from the
online files. There is some value to the difficulties associated with going to the courthouse. The
internet provides too much anonymity otherwise.
No.101
12/05/00
Orange, CA
Criminal case files should not allow general public access to the entire body. The parties, though,
should be listed to allow for searching. Only the "interested parties" should be allowed full
access. A particularly nauseating point has arisen with the advent of the Internet - spam. The
potential for harvesting a great deal of information electronically is quite a simple matter from a
technological stand point. Perhaps a limit to the number of documents that may be retrieved at
one time or in total from an account or IP address. Although this can be circumvented by the
more determined info-harvesters, it should deter the casual cretin.
No. 102
12/07/00
Bethesda, MD
I work with the Internet and my comments are based on the ease of Internet access versus a
visit to the "courthouse". Physically having to visit the courthouse naturally restricts the level of
access. Internet access would open court documents to casual browsing by anyone. Is that in the
public interest? Secondly, information obtained electronically takes on an entirely new life and
can be distributed far and wide (globally) and in many cases can remain in some forgotten
computer file for years and years. Is that in the public interest? I suggest that each type of court
case (civil, criminal etc.) be given its own level of access protection, protection that draws a
balance between the public's right to know and the defendant's privacy. For general access, I
would limit all case information to summary files without any details. Detailed information
would require a password or a visit to the courthouse.
No. 103
12/07/00
Norwood MA
As a concerned "regular citizen" of the US, I'd like to offer the following commentary and
opinion. While it would seem that a privacy policy should be consistent regardless of the access
method -- requesting paper copies, or online perusal -- the fact remains that the internet has
created an ability for abuse of privacy. That is, privacy rights might have been violated less in the
past due to the overhead involved in requesting paper court documents, etc. Making it very easy
and convenient to do so only increases the chance for abuse. I do feel it would be reasonable to
post an online index of cases/dockets, but the actual contents would not be revealed via the
internet; the existing request for paper copies would continue. Additionally, whether online or
not, the authenticated identity of the person requesting case details should be known. This means
the court would have a responsibility of validating the identity any requester of case details,
especially if online. Lastly, if online access is granted -- and the technological hurdle of
authentication can be cleared -- then the Court should also be required to post the details -- name,
company, and contact information -- of anyone who purchased case details online, and link it to
that case. In this way, citizens involved in a court case have the opportunity to know who is
accessing their data. Thank you very much for the opportunity to provide comment.
No. 104
12/08/00
West Virginia
I believe that in the world today with the advantage of technology we should use them and
therefore endorse the filings via internet and records being placed on internet. There is a lot of
information that can be gleamed from studying a case file. The public have a right to know,
unless it is restricted or not in the best interest of the public/parties involved.
No. 105
David Balint, Esq.
Seattle, WA
I have been a trial attorney for 26 years. I have always considered the public nature of our court
system to be a guarantor of the honesty and integrity of the system. The public access to the
courts has always meant to me that it is available to anyone from the public, regardless of
whether they were interested in the particular case. However, this has always required that the
person who wants to review court files or attend court sessions demonstrate a solid interest by
taking the time and energy to come to the courthouse and go through the minimal procedures
required for access.
I have long kept in mind that participating in court proceedings is traumatic, often, for most people.
Most of my clients have only had one court experience. They are required to be open and honest in
the discovery process and in trials. They are willing to do this because they have an expectation that
the material is not going to be widely disseminated. To make documents available at the click of a
mouse button is tantamount to active distribution and voyeurism.
A good example is a good friend of my wife's who was about to be married to a gentleman that I
have had experience with in the courtroom. Revealed in the court files was all sorts of information,
some true, some not about this man. Although our friend was aware of these court proceedings, she
was unwilling to play private "investigator" by going to the courthouse, checking out the files and
reviewing the documents because she felt that was intrusive and a breech of trust. I respect that
decision that she made.
To open the court files electronically would impinge on the integrity of the proceedings by making
people reluctant to be completely open and honest. It would also be an invitation to those who know
that there is protection in the law for materials filed within the context of a court case to put all sorts
of scurrilous information in court documents without fear of liability for defamation.
In short, although records are "public" I think they should be prevented from what amounts to
worldwide dissemination of each page ever filed. The public should come to the records rather than
the records go to the public.
No. 106
12/09/01
Eau Claire, WI
I recommend that, absent special circumstances, all documents filed in all open cases be available
to the public on the internet. However, when a case is closed then its data should be removed from
the web site. This balances the public's right to know about and monitor current cases with the
litigants' right to get on with their lives after the case is concluded.
No. 107
12/10/00
In Criminal matters everything (except where there is a specific reason to with hold the information)
should be available to the public, along with a good index to aid in finding information.
In civil cases subpoenaed information should be withheld, including all involuntary testimony.
No. 108
12/10/00
Portland, OR
I think that electronic case files should be treated the same as paper files. If parties wish to protect
sensitive/private information, they are more than able to move the court to seal the particular
materials. The courts would then weigh the potential for undue prejudice/damage/misuse/abuse of
the information and either grant or deny the request to seal. Any other solution would be extremely
difficult, if not impossible, to manage with the consistency necessary to ensure protection of the
appropriate documents and access to the remainder. I also believe the decision to charge people for
access to electronic court documents is ridiculous and should be promptly reversed. $.7 per "click"
while merely viewing a document is simply absurd.
No.109
12/11/00
San Francisco, CA
I am in favor of making court documents available on the internet.
No. 110
12/11/00
Toni L. Imfeld, Esq.
Linville, Clausen, & Linton
Seattle, Washington
I am an attorney at law practicing in the field of litigation in Seattle, Washington. I would like to
advocate the adoption of the following alternatives in your Privacy Policy Document:
Civil: Option 2. There needs to be access to most, but not all, documents via electronic means, and
uniform rules protecting privacy would be the most effective means to do this with the most
protection of the litigants' private information.
Criminal: Option 2: The fact that criminal files exist is important information, but many items in
them are not public information now, and should remain that way.
Bankruptcy: Option 4: The easiest way to segregate the private information (bank accounts, social
security no's, etc) is to collect them in a specific place or document and restrict access to that
document. It would then be up to the parties and their attorneys to be sure that information did not
make it's way into a public file.
Appellate: Option 2. I feel that electronic access to court files is an important development in the
law, which will greatly reduce the cost to litigants. It is entirely appropriate that the courts consider
the matter of privacy, unless and until Congress can act in the matter.
No.111
12/11/00
Salt Lake City, UT
I see no reason why the public's business should not be accessible to the public by way of the Web.
Someone's private business becomes the public's business when it gets involved in a government
action. I also do not see why the public must pay for access to government documents--as taxpayers,
we already paid for the collection and storage. When government puts records on the Web, they
should save worker time it used to take for them to provide the public with the information and to
store the records. If private business can make a copy for 5 cents, why can't the government?
Providing access to public records by putting them on line allows every citizen the opportunity to
access the public's records.
No. 112
12/11/00
Howard M. Unger
Sarasota Herald-Tribune
Bradenton, FL
Electronic files should be treated the same as paper files, as there is no legal difference between the
two. My only concern, as a journalist, is the timeliness of document postings. As the judiciary turns
more to databases and electronic filings, I do not think the files, themselves, should be treated
differently than paper files.
No. 113
12/11/00
Needham, MA
While it is important to allow court documents to be accessed by interested parties, it must also be
considered fat these parties likely have the resources to obtain the documents in person in a timely
manner. Other interested parties such as the public at large would be able to access these documents
at the court as well.
The advantage of being able to obtain these documents immediately is arguable; however, it should
be noted that for hundreds of years documents have been stored on paper and could not travel faster
than the man carrying them. Justice was served at that time in this country's history. Lawyers who
are investigating cases have traditionally gone to courthouses to read these documents, but the
technology now available would allow these documents to be sent anywhere in the world within
seconds. This mere fact does not require that electronic access be provided. The essential problem
is that technology - especially technology promulgated within the last ten years to distribute tent
documents in a widespread and nearly instantaneous manner - has grown at a much faster pace than
societal regulations. It is imperative that the best system in this country for preserving the rights of
the citizenry - the judiciary - does not move too hastily toward a new system for information
distribution.
The rush to put sensitive documents (namely, medical, judicial and financial) online has largely been
to facilitate public access or business interests. To certain entities, this has proven to be helpful and
successful; what cannot be ignored is the effect on the subjects of that information. Medical and
financial information available online is generally not available to the public at large. It is protected,
for the most part, from public view on private computes systems. Even these private systems,
generally well protected, can be infiltrated and the information contained on than posted to public
websites. Thus, it can be argued that this information should only be stored on computes systems not
connected to the Internet. Judicial documents, on the other hand, would not be protected from this
invasion, because the information is itself for public release. Indeed, it is important for this
information to be available to parties interested in it, as outlined above; it is also important to realize
the differences between making documents available at courthouses and making information
available on the Internet.
Consider a medical malpractice suit. The private information contained in such an action is financial
information about the doctor, medical information about the plaintiff and possibly more information,
depending on how the suit is argued. Thus, you have the private financial records and private
medical records of individuals available to anyone -who requests thin. This information would not,
as it is now, be protected from frivolous or fraudulent claims to the information. With court records
and included medical, financial and employment records available only by request from the
courthouse these is a certain security through obscurity provided the documents. Why one has a
legitimate reason or interest to see court documents, that party can request than from the proper
courthouse in person. Generally speaking, if one desires to research a case they are likely to know
something about it. This could be the court date or the name of a party to the case. With such
information paper records can be rather easily identified. Making these documents available - even
at the courthouse - electronically creates serious potential privacy problems. 1n electronic form, these
documents would all be searchable instantaneously and thus allow many documents to be searched
for specific information for illegitimate reasons. This is a privacy concern at the courthouse level;
the consequences of this information being made available over the Internet expand these same
problems to a nationwide level. Even if records were segregated by courthouse on the Internet, even
if each courthouse maintained an independent site, these cases could be rather quickly searched. In
fact, it is entirely possible that a program could be created to search any number of sites quickly and
report the results in a unified format. This could allow an individual to search for the phrase "social
security number," and find cases where a person's social security number is provided with his or her
address. This would facilitate identity theft and would constitute only one of a great many potential
privacy invasions.
The previous example would result in criminal activity facilitated by online records; however, it is
important to keep in mind that criminal activity is only a small factor in the issue of privacy. Simply
not having private information revealed to a potentially large group of the public is equally
important. Just as laws allow people not to disclose, for instance, that they have HIV for fear of
discrimination, allowing the release of medical records containing that very information in court
cases would defeat the purpose of such laws. The aforementioned medical information, as well as
other private matters such as financial information could be released as a public record along with
court cases. These cases would allow employers and insurance companies to glean information about
their employees and clients from the public record and use such innocuous but private information
against thin. Insurance companies could search court dockets for medical information to day
acceptance into various plans and employers could use that same information to day employment
or benefits based on a probability of death a unwarranted fear of infection to that company's
employees. Of concern as well are simple matters of privacy in general. Citizens of this country are
titled to many rights and freedoms; however, these freedoms bring with them many restrictions.
Lawsuits are one of the foremost examples. In a suit one seeks to redress grievances that may occur,
or to defend oneself against another's allegations. One could end up fighting against an inflammatory
and false claim which may have no merit other than that given it by the court filings. The evidentiary
and identifying information contained in these cases are the main concerns because - beyond
employment and insurance problems - it allows others to invade one's privacy simply so the subjects
involved in a suit can use the court system of this country to settle disputes. Whether alleging or
defending, privacy must be sacrificed in court ; the extent to which that needs to happy is debatable,
but what is not debatable is that the information currently contained in such matters is ,generally only
accessed by those who have a legitimate interest in that information and are willing to work to get
it.
It is of great importance to ensure that lawyers are able to find case law to defend their clients and
for the public to check on their government, but allowing court documents to be accessible over the
Internet takes away the security they now have and rely than unfiltered into the judgmental and
inconsiderate view of the public. This was not the purpose of public record laws and will result in
fewer people willing to use their judicial system to address their concerns for fear that their whole
life, as it exists on paper, will be released to anyone willing to pay seven cents per page.
No. 114
12/12/00
Orange, CT
My only opinion is that either it should be free too look at for everyone, or no one -- the level of
access is a bad idea and will only encourage people to try and "gain" higher levels of access by illegal
methods. Actually, I do not think they should be available electronically at all. Although they are in
the public domain, the ease of access to personal information via the Internet could cause a massive
loss of privacy -- especially if they are keeping records over 17 years old!!!
No.115
12/12/00
John Longino, MBA/JD
I read in Lawyers Weekly that you are considering what to do about public access to court records
via the Internet. It surely seems like a good idea to me to limit case files so that the general public
has no ability to see what is going on and to be sure that only the elite, the local lawyers and judges,
are knowledgeable. For what would ever happen if we were to have equal information for all? Why
the plebeians might demand equal justice too! Let them eat cake! Limiting public access is an idea
worthy of Washington, DC.
No. 116
12/12/00
I am an information security professional and a devout Libertarian. I hold personal privacy above
most other freedoms. However, I see no reason why there should be a distinction between what
information is available through the internet and what is available in person. Are you trying to punish
lazy criminals and reward criminals that are willing to expend some effort? If bank account and
social security numbers are part of the public record and this is a potential hazard in terms of fraud,
they should not be available to anyone regardless of the medium through which they are accessed.
I would rather see these things removed from the public record altogether, but if that doesn't happen,
there should be no double standard. The American public does not trust the government as it is. Do
not give us further reason to mistrust you. We already draw a distinction between us (public) and you
(government) even though the Constitution clearly states that such a distinction is meaningless.
Furthermore, such a distinctions harmful to the morale of the country. Take a step toward reparation.
Do the right thing. Remove potentially threatening information from the public domain. I believe in
the Freedom of Information Act, but only when the right to personal privacy is not sacrificed in order
to be forthcoming.
No. 117
12/12/00
New York, New York
I had a federal judge lose my files in his own file room for several months. This created delays and
the cost of replicating the file from Microfilm.
Now, the Southern District of New York ships the files to somewhere in New Jersey. One has to rent
a car and drive out there to review the files. Posting these documents on the internet would be a time
and money saver for anyone.
No. 118
12/13/00
Samuel B. Blanchard
Breidenbach, Buckley, Huchting, Halm & Hamblet
Los Angeles, CA
As a PACER user for several years, both web-based and dial in, I am familiar with the existing
system of obtaining documents from various Federal courts, mostly in my home/9th circuit. In
general, I feel that if the document in question is available to the public then it should be scanned
and online. Emphasis should be on active cases, but it would be nice to have some
availability for the "recent" past, say the last 5 to 10 years. I much prefer web-based to dial-in as my
firm is on a DSL and I have to run dial-in sites from home. For my money, the .pdf file format is
superior for viewing and printing. The .tiff file format is not as consistently reliable and the image
quality and ease of printing are inferior. Thanks for the great improvements in accessability we
presently enjoy. I look forward to continued and hopefully increasing access to Federal materials.
No. 119
12/13/00
Memphis, TN
I think the Rules of Civil Procedure should be changed so that a party is not required to routinely file
any information. Of course any information required to produced as part of the case must be
provided to the parties and if one or more of the parties thinks certain information is relevant, then
such parties may provide such information to the court. And until the Rules of Civil Procedure are
changed in this manner, it appears to me that the harm of allowing the public free access to sensitive
information is greater than the public good of allowing such access. That is, it foreseeable that
unscrupulous people could use free access to sensitive information to take advantage of and/or harm
people having a connection to the information. Thus I suggest that sensitive information should be
accessible only by those who need to have access, such as the parties, their attorneys and the courts.
After all, there is a difference between the public having access to physical files and electronic
access. That is, to have physical access one must physically appear at the clerk's office where one
can be seen and ask to "check out" a specific file to review allowing at least a modicum of
identification of suspicious actions. Further it is more difficult to review and copy sensitive
information from a physical file. On the other hand, with electronic files, any anonymous person can
simply search for all file for certain types of sensitive information and then if that person is
unscrupulous, use that information to take advantage of and harm people connected to those files.
The opportunity for mischief in this manner is too great and the advantages of such open
access relatively small.
No. 120
12/13/00
Schenectady, New York
Public proceedings are an essential part of our republican government. Star Chamber proceedings
were rejected by the framers, and I reject them too. Public records flow from public proceedings. The
government serves us best by making records easily available. Never forget, we the people are the
government. If any class or type of public records is published on the internet then all must be
published on the internet. I hold that all records of all proceedings before all courts should be
published and available. Secrecy is anathema to our type of government.
No. 121
12/13/00
Winston Ross
Health and Social Services Reporter
The Idaho Spokesman-Review
I'm writing in response to the call for comment on the federal courts' RACER system. The records,
no matter what form, should remain open. My bias is as a reporter. We work on deadline, and often
don't have the same amount of time afforded lawyers and other professionals to run down to the
courthouse every time we need to reference a case. Time shouldn't prevent us from accessing the
information. In fact, if it's been decided that the information should be public record, it shouldn't
matter who can access it or how often. The easier, the better, regardless of who's seeking the
information. I think the court should consider what the rationale is behind having a person present
to receive the documents. Is it to ensure that they're really serious about getting the information? I
don't know many people who look up federal court cases for fun. Is it to ensure that only certain
types of people can access the information? That seems contrary to the principles of the FOIA. The
RACER records should stay open. They should be as open as possible, to anyone who wants them,
at any time.
No. 122
12/14/00
Sloughhouse, CA
Electronic access to bankruptcy court files has reduced costs for my office and improved my
responsiveness to the court. Electronic access helps even more when the court is not located nearby.
This reduces the cost of services, making legal assistance more affordable to the public. It also
improves the delivery of information, and hopefully reduces delays for everyone involved.
No. 123
12/15/00
Elgin, TX
I believe access to electronic files should be completely open. This is to allow ALL persons access
to all information -- not just those who know how to find "back-doors" to the desired data. Secrets
do more damage then the truth.
No. 124
12/15/00
San Francisco, CA
I would like to keep court documents accessible.
No. 125
12/18/00
Bernard Cane
Santa Monica, CA
Private Investigator
Public record access is the fundamental basis for the FREEDOM we all enjoy in this country. To
take public record access away would be in itself unconstitutional and moreover impractical. So
many industries and professions rely upon public records for decision making and due diligence. Not
to mention the justice system and the court system though the thousands of legal vendors
and services. Closing access would invite a flood of fraud and deception this country has never seen.
The balance of integrity is keep in check by public record access. As a businessman and as a legally
licensed private investigator, I implore you to use commonsense. Do not eliminate public record
access. I am a registered user of PACER as well as a number of other public record sources. No
further steps are necessary if we recognize that national access should be limited to registered
qualified users for legitimate purposes.
No. 126
12/22/00
Bogalusa, LA
The ability to find any legal information should be encouraged, in that it would be one more tool that
the uneducated and poor can look to defend themselves from the injustices inflicted by employers,
attorneys(yes they do)and other professionals. Many of today's poor do not possess the knowledge
they need to cope in society due to their lack of fundamental educational opportunities guaranteed
by the government, both state and federal . Over the years the government has consistently failed to
provide the basic quality education necessary to survive in the modern World and as a result the
public needs as much legal information on any program that can assist or be a benefit to the
individual.
No. 127
12/22/00
New York, NY
In some cases, public offices only release documents to citizens presenting identification. The
Americans With Disabilities Act challenges the courts to distribute documents to hospital or bed-
ridden citizens. The interests of efficiency encourage secure measures for remote identification. The
NSA should be extensively consulted concerning a single Federal ID: Password schema. This ID is
not mandatory, and can be distributed using the same methods and offices as the United States
Passport Agency. I think. Increasingly, public offices are dispensing information via the internet.
The internet is a large, public-private owned backbone of non-audited networks. The possibility of
interception, transformation and retransmission of public documents is real. All court documents
should be released via the internet using a secure network protocol.
No. 128
12/22/00
Ira E. Hoffman,Esq.
Grayson & Cable, P.C.
McLean, VA
I strongly support expanding electronic access to court files to the same extent that access to paper
files is available. Of course, electronic access to existing files would have to be read-only, and
impregnable fire-walls would have to be constructed against hackers. I also strongly support
electronic and fax filing (and service). Law firms located in close proximity to courthouses can have
a significant advantage over firms that must allow extra time for filing via courier. Often the
advantage nearby firms enjoy is relatively minimal, but in cases with expedited proceedings or with
particularly litigious parties, the advantage that nearby firms enjoy grows significantly. Both the
GAO and the FAA's Office of Dispute Resolution for Acquisition ("ODORA") allow fax filing and
service on other parties in their administrative adjudications, and our experience with fax filing and
service, which has been considerable, has been entirely satisfactory. Since both adjudicators notify
parties in advance that fax filings will not be accepted unless the entire fax is received before the
filing deadline, the parties know that they must allow sufficient time for pre-deadline completion of
fax transmissions. Since law firms that are located near those agencies still must allow sufficient
time for their filings to be delivered, their geographical advantage is effectively neutralized.
Moreover, because fax copies are physically the same as photocopies (with the exception of the
small fax tag line at the top of each transmitted page), there has never been a question about the
integrity of fax-served documents. To the extent that pure fax filing is too revolutionary for the
courts, they could allow modified fax filing, i.e., allowing filing by fax, but requiring that the
originals of documents that are filed by fax also be filed by mailing (even though the mailed originals
can be received after the filing deadline, as long as the faxed filing was completed before the
deadline). If electronic filing were to be permitted, I would urge that attorneys be allowed to file in
either MSWord or WordPerfect. This may require that the courthouse procure more expensive
software to accommodate both word processing programs, but that additional expense, if any, should
be minimal. One other technological issue is whether attorneys would be required to scan documents
that they have not generated (e.g., exhibits) or whether they could fax exhibits and submit hard
copies for the court to scan. I take no position on that, but I would think that others may have
constructive comments. In any case, the court would need to decide one way or the other, and it
would be appreciated if, whichever way is selected, the decision be implemented uniformly
throughout the federal courts.
No. 129
12/28/00
It is my opinion that the records of government should always be open unless it can be shown in
court that they affect the defense or vital interests of the U.S.
No. 130
12/29/00
Richmond, VA
Currently, civil court records and post-conviction criminal court records are public documents
accessible by anyone for any or no reason. This access is not used because it is administratively
difficult for one who is not working in the court system to know the people and the processes
necessary to get access. Practicing attorneys and their bar associations often see access to the courts
as an economic threat to the attorneys' ability to charge fees. Here in the Richmond, Virginia
metropolitan areas, court administrative personnel, at least under perceived pressure from the
organized bar, are not helpful to citizens who want access to court processes. In state district courts
which are civil courts of limited monetary and subject matter jurisdiction, judges are often although
not unanimously hostile to pro se litigants. This is true even though there is no "small claims" court
or other place for the non-represented party to bring a civil action. Electronic access makes possible:
* Inexpensive and easy academic and citizen review of the court process; * Inexpensive and easy
resource access for the potential pro se litigant; * Less costly administration for the private bar and
government agencies when dealing with litigation; and * Greater opportunities for commercial
exploitation of public record information. Electronic access better serves the general public and
provides the public with the opportunity for greater involvement in the process and function of
government. The improved efficiency of electronic access for practicing attorneys and government
agencies will enhance efficiency with a reduction in legal costs and the costs of government
operations.
No. 131
12/31/00
Lynn Murray Evans
Executive Director
Mississippi Center for Freedom of Information
Jackson, MS
The Mississippi Center for Freedom of Information is organized to safeguard and protect the people's
right to know what its government is doing. It is our position that electronic filings of federal court
cases should be open and publicly accessible. One of the most long-standing rules of common law
has been access to court documents. This public access protects not only the public at large from
frivolous or prejudicial use of the court system, it also protects the parties involved by giving clear
and open access to the case on either side. A defendant has a right to know the case against him; a
victim has the right to know how well the government prepared and presented the case. In a civil
proceeding, the parties involved make use of government resources to resolve a dispute. Again, the
public at large must have clear access to information about the proceedings to protect against their
frivolous or prejudicial use. Particularly in the case of a small litigant suing a large and powerful
corporation or other group, equality before the law is protected by public access to court papers and
proceedings. Restricting public access of electronic filings to court personnel, government officials,
and lawyers erodes the watch dog role that open access provides. The ordinary citizen -- the
neighbor, the sister, the co-worker, as well as other possible victims -- relies on public access to
public records to ensure that government is fair, government is accountable, and government
protects the welfare of the people it represents. In Mississippi, the State Legislature recently passed
a law requiring that all government records filed electronically be governed by the Public Records
Act; the public has the same access to electronic filings as any other public records. We have had
experience in this state with what happens when government agencies operate in secret; we have
learned that open records are a most important safeguard of the public interest. We look forward to
this question being resolved on the federal court level in favour of open and public access to all
electronic filings of the court.
No. 132
1/1/01
Port Clinton, OH
I approve of electronic access to court proceedings; as long as the process of Justice is not
encumbered by record keeping. Although I was displeased that the Democrats made it necessary to
prolong the electoral process by sneaky vote interpretation of chad-laden ballots, thus leading to the
court challenges, I was very pleased for example, that the Election 2000 test of the Judiciary was
completely documented with PDF files from U.S. Supreme Court, the Florida Supreme Court, and
the Leon County Circuit Court. I was able to determine a complete history of all proceedings, most
of which were crucial to the settling of who got the 25 electoral votes.
No. 133
1/02/01
Warren Matson
Pastor, First Love Assembly of God
Milwaukee, WI
I just want to express my interest in seeing greater availability to full disclosure of public records.
As a pastor employing volunteers working with children, my ability to access this material will
enhance our ability to do thorough and competent background checks. Thanks for taking my view
into consideration.
No. 134
1/02/01
Dousman, WI
1. The court system should take great care to only require that information which is necessary for the
conduct of its mission. 2. The members of the court should be fully apprized that the record of the
court's work is a public record. 3. The entire record of the court should be public. 4. Any public
record should be available to the broadest body of viewers by all means of technology. 5. The court
should not discriminate against those who cannot physically travel to the courthouse when
technology allows them equal access.
By the way, your website does not contain a clearly defined privacy policy. I believe that is a
violation of federal policy if not law and it is invasive to require name, address and phone numbers
before accepting comments. Further, it is presumptuous on your part to assume that every
commentor has a phone (or even an address for that matter!) I could be a homeless person
commenting from a public internet access point at a library. Does my opinion not count unless I have
address and phone number information for you?
No.135
1/02/01
Grand Marsh, WI
I believe we have the right to view all public records on the internet, including criminal records. For
too long the criminals have had all the rights, it is time for the public citizens to have access to
criminal records. If people don't want their criminal past revealed perhaps they should become more
law abiding.
No. 136
1/02/01
Fairfield, CA
There is no substantive difference in providing public access to filed court documents by way of
electronic means as compared to accessing the hard file. Creditors, parties, and even interested
members of the public in general can access the records now. Making the access easier does not
change the fact that access is allowed. Any party that has a valid legal reason to seal their records
may seek to do so using either system.
The advantages of easier and more direct access are many. Parties may review their records to
determine the accuracy of the filing and whether a document had indeed been filed. Once the system
is fully implemented, there will be a substantial savings to the clerk's office in personnel time, thus
eliminating extraneous payroll needed to provide direct file access. Ultimately, storage space could
be reduced if the files were reduced to an electronic format and then the hard file is destroyed.
No. 137
1/03/01
Shannon O'Brien
U.S. Bankruptcy Court
Spokane, WA
I support the proposal to limit information such as social security numbers, credit card numbers, etc.
to only include the last four digits. With the debtor's name, address, and other information, this
should be enough to identify the party.
No.138
1/03/01
San Jose, CA
The sheer magnitude of what you are attempting makes me wonder whether the US Judiciary has
the financial, personnel, and hardware resources to maintain such a huge endeavor in light of the
large volume of papers filed daily in our federal courts. I sincerely doubt that it can be done in a
timely manner. Of more value to the public and legal practioners would be free public access to all
of the judicial decisions issued since the founding of the republic that constitute legal precedent. At
present, such decisions are electronically available in most cases only for the past dozen years or so,
at disparate websites, or for a fee at private commercial sites. Providing a single public searchable
database of such decisions would be much more valuable, much more manageable in terms of the
limited judicial resources, and much more easily timely maintained than electronic access to even
just the active case files.
No. 139
1/03/01
Rolla, MO
I will submit my comments broken down into sections as divided by the matters at hand.
First, in regards to Civil Case Files. Option Four, seek an amendment to the Federal Rules of Civil
Procedure to deal with Privacy Concerns. I would see this combined with Option Two, these
amendments dealing primarily with that information would be available electronically and in the
printed record. Specifically, any financial information that could be used for "identity theft" or fraud
purposes; also, any information that could be used to harass a defendant or plaintiff, such as medical
information or insurance-related information. With regard to Criminal Case Files, it does not seem
necessary to provide these in electronic form. The need for using the Electronic system is space-
saving due to the voluminous documentation involved, and because these cases do not generally
create such large files, it does not seem that this is necessary. Further, these records contain
information and pertain to matters which are highly sensitive and personal. With regard to
Bankruptcy Case Files. I would imagine a combination of Options One, Three & Four would be
necessary to prevent fraud and "identity theft" by those who would use electronic access to gain
sensitive financial information contained in these files. These options would still allow the parties
to these matters, as well as other parties such as Credit Agencies, Banks, lenders and other Financial
Institutions access to the information as permitted by statute. With regard to Appellate Cases, either
Option would suffice to protect privacy while allowing sufficient access to the public. As a former
Litigation Paralegal, I have had access to the PACER and CM/ECF Systems, and find them to be an
invaluable tool. As a private citizen who has also acted pro se to represent myself in civil court, I
could see these as valuable tools for the public. Further, I believe that good government is
government that operates in the open. In the electronic age to have these records easily available, but
with secure logins for record keeping and tracing that's time has come. Thank you for this
opportunity for public comments.
No. 140
1/04/01
John Wiltse
Senior Associate General Counsel
University of Nebraska
Lincoln, NE
I hope that there is still time to submit comments on the three alternative policy models under
consideration. I would think that alternatives two and three are preferable to alternative one.
No. 141
1/04/01
Rose L. Thrush
U.S. Bankruptcy Court
Portland, OR
These comments are directed specifically to the proposals for Bankruptcy Case Files.
Proposal 1. Seek amendment to Bankruptcy Code Section 107. In order to work, it would have to
be in combination with proposal 4.
Proposal 2. Require less information. The information currently required is necessary to the
administration of the case. I don't see anything that could be omitted.
Proposal 3. Restricting use of SSN, credit card and other account numbers to
the last four digits. Credit card and account numbers could be reduced to the last 4 digits but I don't
think the Social Security Number should be as it is used to track and identify serial filers and those
who have been prohibited by court order from
refiling.
Proposal 4. Segregate sensitive information and make it available only to the courts, UST and to
parties in interest. This, in conjunction with Proposal 1 would seem to be the best solution. But, do
we have the technology that would allow access to parties in interest which changes with each case.
No. 142
1/04/01
Cincinnati, OH
I believe we do need to secure the information that is available on the internet. I have recently been
divorced and was shocked at how easy it was to access all documents pertaining to my divorce via
the internet. Social security numbers, addresses, as well as the name and birth dates of my children
are easily accessed. I have no way of removing these documents from the internet unless a judge
seals them. I have been told this is not something that can be done - nor do I have the funds to pursue
this. We need to protect the privacy of all citizens. Only basic information such as party names, case
numbers and dates should be available. The system in Hamilton County, Ohio works with entering
only a parties name. I believe that at the very least you should have the case number before you can
access information. I happen to be an employee of the courts and realize the sensitive nature of many
of the documents. I know this is not an easy task but one we must
carefully review.
No. 143
1/05/01
Harrisburg, PA
As to criminal cases, I would suggest adopting the recommendation to provide limited electronic
public access to criminal case files. The public is entitled to some information regarding criminal
cases, but I agree with the statement that safety and security concerns should be met with regard to
plea agreements, unexecuted warrants, etc. Thank you for affording me the opportunity to comment
on this very important and timely issue.
No. 144
1/05/01
Phoenix, Arizona
Access via the internet is not the same as access by visiting a court house and going through paper
or microfiche files. Any curious browser of any age has easy access on the internet to many things
not relevant to their interests, but easily copied and forwarded around the world. The potential harm
far outweighs ease of access for the legitimately interested few. A distinction exists and should be
defined between "public access" and internet access, which is essentially random distribution. All
technological advancements are not "advancements" and are not beneficial. Identification of a file
and the status of that file, as is currently available on the internet, may be all that is appropriate.
No. 145
1/05/01
Case files should be protected from public disclosure. In fact, all files/records containing private or
sensitive information such as medical records, personnel files, tax returns, proprietary information,
motor vehicle information or police records should be protected from public disclosure. These
files/records should never be put on the internet for the whole world to see. Case files/records
contain private or sensitive information that can bring down bias attitudes on a person that will
prevent a person from improving himself and lifestyle literally destroying the person being exposed.
There is no such thing as security that can not be penetrated, this was proven via YAHOO and
Microsoft. The police departments, FBI, CIA, Secret Service, as well as, the court system have
several cases alone to attest to that. Disclosure of sensitive information such as medical records,
personnel files, tax returns, proprietary information, motor vehicle information or police records
should be on a "need to know" bases. People can and will use this information to unlawfully keep
other people from obtaining such needed things as medical insurance, jobs and housing. All of which
people strive for to better themselves. There is another side that should be considered, when people
feel that the truth will threaten their livelihood, they tend not to tell the truth. I see this action
bringing in a slew of court suits, the likes of which we have not seen. The likes of which the courts
and laws are unprepared and will not be able to handle. The people have trust in the system that it
will not expose them or backlash on them and that when they make a mistake they can correct it. If
the system is prepared to expose them, throw them to the wolves and strip away their pride, won't
this hinder the people from exposing themselves for as simple a reason as they did not want their
neighbors or boss to know? People with prison records have a hard time getting a job and find they
have to just not expose that part of their lives to obtain a job and a lot of these people go on to
become productive citizens and can get other jobs based on their performance on the previous job,
but if their records are there for all the world they will never be able to get on their feet and are added
to the list of non-productive people. People who have never been in trouble before, can be ruined for
life because of one mistake. Heck, politicians can be ruined. I know people always can find a way
around something but is that really what we want? Why is the disclosure of this information so
secretive? Why was this question not set out for the people to vote on? Thank you kindly for your
time.
No. 146
1/07/01
Chattanooga, TN
A close relative of mine unexpectedly married a man of whose character I was suspicious. I wanted
to know if my concerns were valid, and I was able to use the internet to verify that the man has a
long history of misdemeanor arrests in our county, a few convictions for those, and that he is
currently on probation for a home invasion involving a hatchet as a weapon. He plead guilty to 2
misdemeanor charges in lieu of trial for the felony charge and an accompanying misdemeanor. The
laws which make this information easily accessible to me enabled me to make a decision to avoid
contact with him as much as possible. Since he recently yelled offensive, hostile remarks at me when
I was on the phone with my relative, I know he has no intention of improving his behavior. With a
clear conscience, I can now avoid this person completely. Please work to make this information
available for all of our law-abiding citizens. Dangerous criminals try to cover up their past so that
they are more easily able to take advantage of their next victim. The internet has enabled citizens to
recognize and avoid physical and financial harm. Our government has given us the ability to avoid
these situations, and I protest any legal restraints that protect the criminals instead of protecting the
law-abiding citizens.
Thank you for soliciting comments and for considering mine.
No. 147
1/08/01
El Centro, CA
First, I do not wish to attend any hearings unless at government expense. My concern is including
too much personal information such as social security numbers on any INTERNET access. Identity
theft is growing. Crooks will soon be accessing the internet to obtain that number then steal
identities. The current controls are elementary. By way of example, one merely has to sign up to
access any court document and agree to pay 7 cents a page. Many do not pay once the information
is obtained. I am not against that system, however, there is no verification or investigation into the
person desiring access. As a recommendation I recommend legislative sanctions for unauthorized
use of the information. From the enforcement side certainly some computer person should be able
to trace where the information went. My primary concern is image to the courts - imagine some 60
MINUTES interview in the future from some jail or prison. The crook stating words to the effect that
" I dialed up the stuff from the federal court site, it was that easy."
No 148
1/08/00
Waukesha, WI
I wish to comment on the issue of public access to electronic federal court files.
The alternative l favor is to allow access to the complete case, file at the courthouse, but limit public
electronic access to sensitive information. Social Security numbers should be guarded from the
public.
I have had first-hand experience with stolen identity. Someone used my Social Security number to
set up a wireless phone service account. They probably obtained my-.,number from the motor vehicle
licensing dept.,, or any number of different sources. I would never put my number on the Internet.
I also experienced a serious breach of medical records privacy when I signed a simple sounding
release of medical information when I applied for life insurance.
Saying "You can go to the judge and get a court order to seal it". That is not what a person should
need to do, and is not something the general public knows about, Protect witnesses, and :Litigants
as much as possible.
No.149
1/08/01
Carolyn Elefant , Esq.
Law Offices of Carolyn Elefant
Washington, D.C.
My name is Carolyn Elefant and I am an attorney and member in good standing of the D.C. and New
York bars. I hereby submit my comments on the electronic filing proposal and ask that I be permitted
to share by views on the proposal during the public comment session. By way of background, for the
past seven years, (following stints with the federal government and a small boutique practice) I have
had my own law firm, the Law Offices of Carolyn Elefant. At my law firm, I have had the
opportunity to handle a wide variety of cases, including appeals before the United States Courts of
Appeals for the D.C. and Second Circuit, the D.C. Court of Appeals and New York Court of
Appeals, civil and criminal jury trials in D.C. Superior Court, federal administrative proceedings
before the Federal Energy Regulatory Commission and Merit Systems Protection Board. I also serve
as "of counsel" to a small law firm with a renowned national, consumer oriented energy practice.
Although I am a small firm practitioner, I am heavily dependent on Internet technology in my
practice and recognize its potential for improving the quality of legal services for all litigants. For
example, two years ago, I used the Internet to develop a website where I have posted resources for
pro bono practitioners in the District of
Columbia.(http://www.his.com/israel/loce/probono/probono.html). My site was briefly written about
in the Washington Legal Times and will be the subject of an article in the ABA Technology Journal.
More recently, I have written several articles on the impact of technology on small firm practice,
which have been published in the Washington Legal Times. In October 2000, the Washington Legal
Times published my article on E-Filing and Privacy. The link is included below:
http://www5.law.com/dc-shl/display.cfm?id=3943&query=Elefant. My article already describes
many of my positions on where to strike a balance between the privacy of litigants and the
importance of allowing attorneys to access e-filed resources to facilitate and improve their
representation of clients. I am aware of how e-filed documents can help attorneys represent clients
on a budget from my own personal experience of practicing before the Federal Energy Regulatory
Commission (FERC). For the past three years, FERC has scanned documents and pleadings filed by
parties in proceedings and made them available at its website. On more than a few occasions, I have
searched these documents and relied on the research contained in pleadings to expedite my own
research for my clients. Because not all of my clients can afford LEXIS or WESTLAW, the quality
of my pleadings would have been substantially diminished in the absence of access to these
pleadings. As I point out in my article, I expect the same to be true -- and even more so-- with
pleadings and briefs filed in court proceedings. Many of these documents will contain arguments and
information so that attorneys working for clients with meager resources do not have to waste time
"reinventing the wheel." Moreover, access to these documents may enable attorneys to improve the
quality of arguments or finesse arguments so as to distinguish cases from existing precedent -- which
can lead to new developments in the law. For that reason, the ability of attorneys to freely access,
at a minimum, briefs and motions is absolutely paramount. It is a right which must be considered on
par with litigants' rights to privacy. What is also troubling is that already, briefs and motions are
becoming available on the Internet -- at a cost. Services such as briefserve.com and briefbank.com,
to name a few, make briefs and motions available at a cost. I have investigated these costs and
though they are not exorbitant -- perhaps ranging from $75.00 per document at briefserve.com to a
$30.00 monthly fee at briefbank.com, these costs can add up. Unless I were certain of what I were
looking for in a particular document, I would not risk paying the access charges for most of my
clients. But why should a client with more resources be able to access these documents without
concern for cost? Allowing all attorneys to access the database of briefs and pleadings freely will
ensure that all clients have equal opportunity to utilize these resources. For that reason, I advocate
what I have come to call an "attorney's fair use doctrine" as a standard for access to electronic files.
Under this standard, attorneys who are members in good standing of any bar would be permitted
unfettered access to complaints, pleadings, motions, memoranda of law and appellate briefs with the
understanding that such material would be used for the purpose of (1) representing litigants
(including investigating prior claims against plaintiffs or defendants, since such information would
come out eventually in discovery anyway) or (2) writing educational articles. In any case, parties
could seek protective orders to shield disclosure of sensitive information such as social security
numbers or financial documents. Alternatively, files such as tax reports, probation reports or other
sensitive information could be withheld from disclosure to attorneys. In any event, should an attorney
misuse the information, for example, sell the information to the press or not handle it with the
appropriate degree of confidentiality, the attorney could be subject to disciplinary action before his
or her local bar association. Ultimately, attorneys are officers of the court -- and can be entrusted to
use the utmost discretion in accessing electronic files. Given the paramount importance of such
information to representation of clients and ensuring that clients of lesser means have the same
ability to obtain electronic documents as wealthier clients, the court should adopt an "attorney fair
use doctrine" as an exemption to any more serious restrictions it might impose. As to the suggestion
that the Federal Rules of Civil Procedure be amended, I would agree. When I first heard of the
electronic filing initiative, I was reminded of an old chestnut of a Supreme Court case from my civil
procedure class in law school, Sibbach v. Wilson (which I really never understood until now). In
Sibbach, the appellant challenged the legality of one of the then-recently enacted FRCP discovery
rules which required that she be subject to a physical examination by the appellee. Mrs. Sibbach
argued that such a rule was an impermissible federal intrusion on her state right to privacy. The
majority disagreed, claiming that the FRCP were merely rules of procedure and did not confer or
detract any substantive rights. But Justice Frankfurter dissented, holding at the very least that the
legislature should have an opportunity to rule on the issue prior to the court inferring that the
legislature, through the FRCP, had intended to take away important state rights to privacy. As with
the discovery rules questioned in Sibbach, the rules of electronic filing that the Judicial Conference
is currently considering are not merely rules of procedure, but substantive rules which can forever
change the way we practice law. The rules may impact the privacy and security of individuals by
allowing the general public to access social security numbers or tax returns -- and adequate
protection for sensitive pieces of information such as that must be provided. At the same time, if the
courts do not allow all attorneys open and cheap (if not free) access to "lawyer work product" such
as pleadings, briefs and memos, the court will give rise to a system where commercial providers will
come in and package and re-sell the information at a high price, making it available to some while
denying access to those with fewer resources and further widening the gap between those who can
afford justice and those who cannot. For that reason, either the FRCP must be amended or legislation
must be adopted to guarantee that any practicing attorney anywhere in the country can access
whatever files necessary to provide the best possible representation to his or her clients -- no matter
their resources. I would welcome the opportunity to provide comments at a public forum. Even if
I am not selected, I believe that it is very, very important to have the views of a small firm or solo
practitioner represented.
No. 150
1/11/01
Sevierville, TN
I think all bankruptcies should be a matter of public record via the internet. I do not understand why
anybody would claim there are privacy issues regarding such postings. I plan on taking bankruptcy
soon and I would certainly understand access to my case via the internet. Putting bankruptcies on the
internet will only increase efficiency within the bankruptcy arena. Thank you.
No. 151
1/12/01
Eddy L. McClain
Director & Past President
The National Council of Investigation and Security Services
The National Council of Investigation and Security Services representing licensed private
investigators nationally and forty state and regional investigation associations, appreciates the
opportunity to comment on privacy and public access to electronic case files of the Federal Courts.
The United States has traditionally been a nation that provides open access to governmental records.
It is a hallmark of our democracy that any citizen has the right and the opportunity to review the
decisions of our courts, just as citizens have the right to information about Congress and the
Executive branch. As pointed out in your December 15, 2000 paper, "In numerous cases the federal
courts, including the Supreme Court, have held there is a 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)." And in the case of criminal records, the rights of law-
abiding citizens to protect themselves, their families and property from criminals should outweigh
any right to privacy to which a convicted criminal is entitled. But NCISS is equally concerned as the
many who feel that making all case files available on the World Wide Web will invade the privacy
of individuals and organizations who are drawn into our justice system. In response to privacy
concerns in the electronic age, some of our members have remarked,"It does not make sense that
access to these files was acceptable when they resided in a dusty courthouse basement but is now
unacceptable because they are more readily viewed." But, in fact, there is a difference between a
record being available for public review in a courthouse and broadcasting a record over the World
Wide Web. Another member stated, " Saying electronic access really isn't any different from going
to the courthouse may be technically correct but in practice there is a big difference. It's like saying
a car is no different from a horse and buggy - just faster. Improved technology requires some
improved controls. The ease of access, ability for the casual person to browse, and the complete lack
of control over access cannot be ignored." We strongly oppose any restriction of access at the
courthouse or of limiting unsealed information to the public. But there is no question that being
required to make an appearance at a courthouse and to identify oneself before viewing these records
has more security than the anonymous access to a complete file over the Internet. We must
sympathize with the theory that, "while there is no reasonable expectation of privacy in case file
information, there is an expectation of practical obscurity that will be eroded through the
development of electronic case files." NCISS does not feel that an amendment to the Federal Rules
of Procedure is indicated at this time. Our members are staunch supporters of the individual's right
to privacy, but we are perhaps more aware than most of the negative ramifications of a hasty reaction
to the relatively few horror stories that the media need for grist every evening. Weighed against the
hundreds of thousands of daily informational transactions that are necessary for our society and civil
and criminal justice systems to function smoothly, these aberrations do not justify tinkering with a
system that has made this country the bulwark of democracy and open government that it is today.
Therefore, with regard to the "Policy Alternatives on Electronic Public Access to Federal Court Case
Files," we offer the following:
Civil Case Files We are aware that on occasion a court proceeding may involve information which
need not be made available to the public. But in those instances, the litigants have the ability to
request and the courts to rule that such records be sealed. There is no need to restrict access for all
those persons who have legitimate need for the information.
The presumption that all filed documents that are not sealed should be available at the courthouse,
should be continued. Any blanket bifurcation of information into two files, one the public may view
and one excluded from public view by some artificial means, would be a poor substitute for the
court's discretion on a case-by-case basis. It would, in our opinion, also create an arbitrary nightmare
for the courts to have to divine and decide what documents would occupy the two categories. Such
a system would, by necessity, be subjective and would make national uniformity impossible.
Unlimited access to file information on the Web to any person in the world electronically and
without regard to who they are and what purpose they have can only lead to problems which then
could lead to the total elimination of electronic access to everyone. Since the courts seem to favor
the Web as the instrument to use for electronic access, we feel that some restrictions should apply
in order to register and qualify for electronic or PACER type access. We do not believe that
electronic access should be available to persons outside the United States, just because they can
access the Web. Moreover, allowing foreign access could increase intellectual property theft and
leave American victims with little or limited recourse. Electronic access should be on a case-by-case
basis when the subscriber submits a name or case number. Wholesale selling of records to
information data base providers will lead to abuses and a lack of control. The current system of
requiring individuals to obtain a PACER account in order to obtain electronic access to docket
information could be tightened by requiring applicants to certify their occupation such as licensed
private investigator or attorney thereby demonstrating their need for access. At the minimum, there
should be an electronic trail that indicates who accessed the information. Such a registration
requirement in itself would enhance privacy and discourage the casual viewer who might not have
a legitimate legal or business purpose for the information.
Criminal Case Files We feel that criminal case files should be treated the same as civil case files. We
do not believe that courthouse access procedures should be restricted any further than they are at
present. Certainly, every precaution must be taken to ensure the safety of witnesses and others but
we do not believe that electronic access to the file will lead to any appreciable danger to witnesses
or their families. The continuing public need for knowledge of criminal activity must be recognized
and having access to criminal record information by registrants through a PACER type system will
help fill that need. A system to provide electronic access to criminal record information by
registrants will be beneficial to the public and to employers who are trying to provide a safe
workplace.
Bankruptcy Case Files NCISS is categorically and philosophically opposed to the closure of public
records. In the case of bankruptcies, we feel the petitioners have a duty to make full disclosures in
order to receive the economic relief they seek. Bankruptcies are usually instigated by the petitioners.
And the petitioners waive certain rights to privacy in order to avail themselves of the relief. We
believe that society has a right to know the details of bankruptcies so that they may make their own
judgments with regard to future relationships with the petitioner. It is not just creditors who have a
vested interest, but also potential creditors and others who might rely on responsible financial
behavior by the petitioner. There are good reasons that bankruptcies are disclosed. We do not believe
the public's interest will be served by requiring the petitioner to submit less information nor by an
arbitrary restriction of information availability by the court. In fact, only an increase in mischief and
fraud would likely result from such a revision. All investigations require positive identification of
subjects. Courts do not tolerate incomplete evidence and investigators must constantly be able to
differentiate between the true subject(s) of an investigation and persons with similar names or
identification. The Social Security number was not originally intended to be a national identifier, yet
that is exactly what it has become. It is virtually impossible to navigate our world without providing
one's social security number, even if you are an infant. NCISS is concerned about identity theft and
the misuse of the social security number, but we are equally concerned about the unintended
consequences of draconian measures to eliminate means of identification. When a "Robert Smith"
files for bankruptcy, the other Robert Smiths of the world have a right not to be confused with the
petitioner. For this reason, we urge the courts to be extremely cautious about eliminating identifiers
from records as has been suggested as an alternative. Requiring a date of birth on all case files and
perhaps with the docket information would greatly enhance accuracy of identification.
Appellate Cases NCISS believes that Appellate cases should be treated the same as cases at the trial
court level with full electronic access to any documents not sealed by the Court. In Closing, As a
final reiteration, we strongly oppose the bulk sale of records to third party re-sellers. Access to file
information through a PACER type system should be on a case-by-case basis to end users. While
bulk sales may be profitable to offset expenses, it can only lead to a loss of control and misuse.
Proper use of records is essential. We also feel obliged to express the concern of many of our
members regarding the efficacy of completely eliminating any hard copy files and relying totally on
electronic document storage. We presume the downside of an electronic catastrophe has been
weighed and discounted by the experts in favor of a cost saving, but we feel an obligation to express
our concerns. In recent months, hackers have successfully penetrated government data bases and
wrought some mischief. It would seem to us that having no fall-back position to such sabotage could
wreak havoc on our system. On the plus side, the improved availability of necessary information and
reduced copying charges will surely improve the civil and criminal justice systems and make the
work of the professional investigator more cost effective to the benefit of the consumer. We thank
the Court Administration for allowing us this opportunity to comment.
No. 152
1/12/01
Andrew Oh-Willeke
Rumler Law Corporation, P.C.
Denver, Colorado
I am an attorney admitted in the State of Colorado and New York, and the applicable federal district
courts. I do not plan to attend a public hearing. I favor, in a nutshell: (1) Maintaining the presumption
that all filed documents that are not sealed are available both at the courthouse and electronically.
(2) This presumption should also extent to criminal case files, where the Sixth Amendment
guarantee of a "public trial" gives public access to criminal case files a constitutional dimension. (3)
Rule 107 of the Bankruptcy Code should not be modified to reflect a movement to electronic records
access. (4) Restricting use of credit card and other account numbers, and to passwords, which
provide access to funds or property to the last four digits is appropriate in all contexts, not just
electronic ones, unless the entire number if for some reason "at issue". (5) Consistency with these
rules at the appellate level is appropriate. Applying different standards to paper records and
electronic records is not sensible. Nothing in the public record is ever really private. If you can access
it on paper, nothing prevents a commercial company from electronically scanning those records (or
the records of most interest to third parties regardless of the legitimacy of their interests) and making
them available electronically for a fee. We have already seen large scale well organized examples
of this in the credit reporting industry, in the legal publishing industry and in the title abstract
industry. Illegitimate users, such as individuals set of profiting from criminal identity theft, are
precisely the people who have a financial interest in taking the trouble to inspect the paper records
personally to obtain and then misuse information, and will not be inhibited by a paper record
standard. Similarly, in a high profile case, the press will access paper files and make any and all
information widely available. The only person effectively prevented from accessing information by
not making it available electronically, is the publically minded citizen who has an interest in seeing
the workings of the court, one of the uses of public records which has traditionally been considered
legitimate. The way to protect privacy, if it is going to be effectively protected, is by keeping
information out of all public records, electronic or paper. For example, it may be legitimate to keep
complete credit card numbers or computer passwords out of public records as a matter of universal
rule, to prevent theft and fraud. In the case of social security numbers, this benefit is far more
dubious, because so many records, public and private contain them, that anyone can easily obtain
one from a credit reporting agency. The information reporting regime of the Internal Revenue Code,
most evident in the ubiquitous form 1099, means that any active business person must make his
social security number (or the equivalent) available to dozens or hundreds of people. A social
security numbers, and driver's license numbers, for better or worse, have evolved into a numerical
version of a person's given name except that it is less subject to change, rather than a number that
by itself serves a material security purpose. Another way privacy could be enhanced, would be to
permit litigants who would ordinarily have to disclose a residential street address for certain purposes
in court pleadings, to use a post office box instead, if that person consented to service of process at
that post office box address. Any concern about prisoners obtaining inappropriate access to
electronic records, is best handled as a matter of prison regulations on access to the Internet, and not
by restraining the rights of the general public. Moreover, the prisoners about whom the most concern
has been expressed, criminals who are acting in some form of organized crime, are likely to have
lawyers and associates outside the prison who can legally obtain access to the paper records. Controls
on the interactions prisoners may have with the outside world are again, the best defense in this case.
Absent a legislative mandate, there is no reason for the courts to change their privacy policies, simply
to reflect a new technology. The courts did not change their privacy policies when the photocopier
was invented. The courts did not change their privacy policies when organized companies started
to abstract public court records and make them available electronically. The courts should not do so
now. Electronic record availability simply provides the public the useful service of making records
that the public already has a right to see, less burdensome for court personnel to make available to
those people.
No.153
1/15/01
Erik S. Bakke, Sr.
Davis, Arneil Law Firm, LLP
Wenatchee, WA
I would like to applaud the efforts of the judiciary in general, and in specific, the works of such
courts as the United States Bankruptcy Court for the Eastern District of Washington and the District
of Delaware for making court files available to counsel over the internet, through the use of programs
like WEB-RACER. The amount of time and monetary savings to our clients as a result of these
services are immense. The court's files are a matter of public record. Anyone has the ability to go
to court to review a court file. The only difference that access of court records over the internet has
made is that it is far more convenient and accessible for anyone, lawyer, client or consumer. While
I can appreciate concerns that may arise as a result of making identification information of
individuals contained in court records more easily available, those individuals who want to exploit
this information already have access to the information either over the telephone or even personally
appearing in clerk's offices and requesting to review the files. WEB-RACER has become an integral
part of my practice, and I suspect of many attorneys who practice in the fields of bankruptcy and
commercial law. If any limitations are contemplated to the electronic access of court records, please
consider not limiting attorneys who are officers of the court and who use the information in the
representation of the clients before the courts.
Perhaps access to such records, if it is deemed appropriate (which I believe is not) can be made
available for access only after signing up, requesting a user name and receiving a password. Access
can be limited to certain areas of the court file or identifying information based on the "level" of
access that is permitted to a user. In closing, I wish to point out that access to court records has not
changed as a result of our technological advances. What has changed is convenience. The law is a
fluid thing. We in the profession must be willing to embrace and move forward with technological
advances. It is in our own and societies best interest. Limiting electronic access to information which
is already public, makes no sense, and is short sighted.
I wish to thank you for the opportunity to comment.
No. 154
1/15/01
Paul Stewart Snyder, Esq.
Ashland, KY
Everyone recognizes that electronic distribution of documents will have significant negative
implications for maintaining privacy, however free public access to public records is critical in a
democracy. If maintaining the privacy of certain information is considered to be desirable, that
information should be segregated by the judiciary for cause in both the paper and electronic file, with
the consent of the parties. To make an artificial distinction based on ease of access, rather than on
content, represents a dangerous move toward restricting public access to the courts. As electronic
documents replace paper documents, that precedent would allow the creation of an electronic "star
chamber", where the judiciary would have the power to close the courthouse doors to the public and
press. The only alternative that preserves both privacy and first amendment rights is to eliminate the
disclosure requirements for essentially private information, and to maintain the rule of free access
to all information that is traditionally considered an appropriate part of the public record.
No. 155
1/16/01
Everett, WA
Public information should be accessible electronically under the same provisions currently in place
for paper copy. Either a document is public or it is not. Electronic access will make obtaining public
information easier, more convenient and less expensive than the current system. It will remove the
restrictions of geography, allowing everyone access to public information no matter where he is or
when. This is one of the amazing qualities of the internet and one that many people regard with fear.
The internet removes certain barriers which have always been imposed upon us by space and time.
It is difficult (and I think scary) for most people to imagine the absence of a barrier which has always
been there. Enabling electronic access to public documents dissolves a barrier whose removal should
be welcomed.
No 156
1/16/01
Mississippi Press Association
Jackson, MS
Thank you for giving our organization the opportunity to comment. Newspaper associations and
other media organizations such as ours are vitally interested in this topic. The Mississippi Press
Association, a trade organization representing over 120 daily and weekly newspapers, strongly
supports extending the well established common law right of public access to court proceedings and
court records to electronic court files.
In our view, there is no reason why court files online should be treated any differently than the court
files and proceedings that our democratic system of government has long made open to the public.
James Madison wrote: "A popular Government, without popular information, or the means of
acquiring it, is but a Prologue to a Farce or a Tragedy, or, perhaps both. Knowledge will forever
govern ignorance: And a people who mean to be their own Governors, must arm themselves with
the power which knowledge gives." 9 Writings of James Madison 103 (G. Hunt Ed. 1910), as
quoted by the United States Supreme Court in Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
518 n. 4, 78 L. Ed. 2d 629, 643, 104 S.Ct. 819 (1984).
In that landmark Supreme Court opinion, popularly known as "Press-Enterprise I," the Court held
that closed court proceedings, although not absolutely precluded, must be rare and may be closed
only for cause shown that outweighs the traditional value of openness carried over into our form of
government from English common law.
In Mississippi, the State Constitution expressly provides that "[a]ll courts shall be open." Miss.
Const. 24 (1890). The State Legislature has endorsed this principle, requiring that all government
records filed electronically be governed by the state's Public Records Act, meaning that the public
has the same access to electronic files of the state as it has to paper files. In 1941, the Supreme Court
of Mississippi addressed the then new technology of photocopying and held that public land records
should be open to being reviewed and photocopied by any member of the public, even people who
had no interest in the public land records at issue, just as those records had always been open to
inspection and hand-copying by the public. Logan v. Mississippi Abstract Co., 190 Miss. 479, 200
So. 716 (Miss. 1941).
Again in 2001, we are faced with a new technology potentially allowing enhanced access to court
records. Once again, with the same wisdom demonstrated by the Mississippi Supreme Court in
1941, we should adhere to the principles of openness that have governed public access to judicial
records since the beginning of our Republic and beyond, regardless of the medium through which
those records are made available. We should not allow the new medium to distract us from what has
always been a core of our system of government -- openness.
As a representative of members of the Fourth Estate, the Mississippi Press Association has a
heightened sensitivity to this issue because its members often serve as watchdogs for the public. In
our state, state judicial records are kept in small courthouses in 82 counties, widely separated across
a landscape stretching from the Mississippi Gulf Coast to the border of Memphis, Tennessee. We
have federal court records located in six different courthouses that span this same area. For the
reporter who must drive from one end of the state to the other to view and copy court records while
researching a news story on deadline, the availability of court records online would be of great
benefit. Availability of public records from a computer terminal would enhance the news media's
ability to perform their watchdog function by reducing costs and time constraints. Such an
advancement could only serve, not hurt, the public interest.
Objections to online access now being raised by privacy interests voice no new controversies. We
are still dealing with the same privacy arguments confronted by the U.S. Supreme Court again and
again in our past. Chief Justice Burger wrote in 1980 that "[p]eople in an open society do not
demand infallibility from their institutions, but it is difficult for them to accept what they are
prohibited from observing." Richmond v. Newspapers, Inc. v. Virginia, 448 U.S. 555, 572, 65 L.Ed.
973, 987, 100 S.Ct .2814 (1980). In 1984, he wrote that "[o]penness. . . .enhances both the basic
fairness of the criminal trial and the appearance of fairness so essential to public confidence in the
system." Press-Enterprise, 464 U.S. at 508. He spoke of an "unbroken, uncontradicted history [of
openness], supported by reasons as valid today as in centuries past." Richmond, 448 U.S. at 573.
In Press-Enterprise I, the question was whether transcripts of jury questioning in a case in which a
15-year-old girl was raped and murdered should be open to the news media - a situation much like
scenarios proposed by those who argue against online access to court records today. The Court held
the records should be open.
Nothing has changed except the technology. Our nation's unbroken history of openness of the courts
and the records produced therein compels us to carry those values into this new technology without
hesitation. We support electronic access to court documents.
No. 157
1/17/00
Charles A. Schaffer
Director, Small Business Assistance Office
Minnesota Department of Trade and Economic Development
In response to the invitation for comments regarding the Administrative Office's "Privacy and Access
to Electronic Case Files in the Federal Courts" (the "Paper"), the Minnesota Small Business
Assistance Office, for the reasons set forth below, urges the adoption of the Paper's Alternative 1
regarding public access to electronic case files: "Extend current open access policies to cover
electronic case files." As the Paper's discussion of Alternative 1 indicates, that Alternative
implements the philosophy "...that the public case file should not be treated differently simply
because it is in electronic rather than paper form."
By way of background, the Minnesota Small Business Assistance Office (the "Office") is a
statutorily created operating unit of the Minnesota Department of Trade and Economic Development
which, among other things, recommends or develops policy to facilitate the start-up, operation or
expansion of a small business in Minnesota. As part of that effort, the Office regularly monitors legal
and regulatory developments affecting the business community. Such monitoring is not limited to
legislative or administrative action but also includes the substance and contents of cases filed in
federal courts. The contents of a business bankruptcy filing by a firm that employs Minnesotans, for
example, will be useful in determining the substance and timeliness of State action to address job
loss and direct or redirect economic development assistance resources. The contents of civil case
files involving parties presently receiving or potentially seeking State resources is a necessary part
of economic due diligence.
Nor is the need to be aware of the contents of such case filings limited to situations involving actions
directly involving immediate State decision making. The contents of such filings offer, to a degree
and detail not available in published judicial opinions or even parties' briefs, substantial insights into
the structure and competitive position of both firms and industries: information useful in the
development of economic policy. It is not an overstatement to, say that electronic access to case files
has resulted in both better State policy making and a better informed small business community in
Minnesota. Restricting access, under either of the other two alternatives set forth in the Paper, would
prevent this Office from securing timely and accurate information with which to inform Minnesotans
and shape good State policy.
In addition, this Office believes that there are other compelling reasons to adopt Alternative 1. As
is clear from the Paper's review of the common law and constitutional bases of a right of access to
court files or privacy-based limits on such access, the full contours are unknown as to how privacy
concerns can, should, or do limit a right of access. In practical terms, and certainly in terms of
litigation, that which is "private" is that which a party considers sufficiently sensitive to be worth
taking necessary steps to protect from broad release. In many cases that sensitivity is circumstance
or situation specific, very often the circumstance of litigation itself, rather than being tied to the
nature or content of the data or information itself. To date, when a litigant has such privacy concerns,
the litigant's requests to seal court filings have been left to the relevant judge's discretion. That
mechanism has worked well to date, and the Paper's Alternative 1 is the only alternative that
incorporates it.
Moreover, both Alternative 2 and Alternative 3 have troubling elements. Given the circumstance or
situation specificity noted above, it is hard to see how any new definition of a "public case file" could
be produced that would be uniformly applicable. It is easy to conceive of situations where the same
litigant could have very different views of the need for protection of the same data, depending on
whether the litigant was plaintiff or defendant; in antitrust actions, for example. It is difficult to
imagine who would be in a better position than the litigants and the judge to review the elements of
a case file to determine what should be public in either a paper or electronic file. With respect to
Alternative 3, the concept of different "levels" of access is by itself troubling. In this Office's view,
the costs of technology already provide such strong barriers to access that it is difficult to endorse
the erection of additional barriers. In addition, looking at the examples in Alternative 3, it is difficult
to understand what articulable standards could be used for an objective and always-defensible
process of deciding who gets what level of access. For example, in Alternative 3, what would
determine how a case file, in a case unrelated to current litigation, was or was not "relevant" to
litigants and their attorneys?
Again, this Office believes that the best course of action is extension of the current open access
policies to cover electronic case files. We would welcome the opportunity to participate in a public
hearing though our remarks here are not contingent upon, nor offered in expectation of, such
participation.
No. 158
1/17/01
Toby Brown
VP Strategic Initiatives
iLumin Corp.
I believe the courts (federal, state and local) should revise their policies to protect private information
within public court documents. Although the public has a right to know of certain actions, citizens
should be able to use the courts without fear of having their personal, private information published
on the Internet. The current court approach utilizing .pdf formats will not easily accommodate this.
A better approach would be to use XML-based documents. With XML the courts would have the
ability to show portions of documents, while easily redacting the private data from them. PDF and
other formats are an 'all or nothing' proposition where the courts will have to chose between showing
everything or showing nothing. Neither of these options are reasonable. I refer to Legal XML
(www.legalxml.org) for efforts to develop XML standards for court filings. These standards could
easily include privacy categories, which could correspond with Court privacy policies. Thank you
for the opportunity to submit comment. P.S. Given the nature of this comment request, you might
want to post a more comprehensive privacy statement in re: to the use of the information being
submitted.
No. 159
1/17/01
Richard J. Byrd, Esq.
Byrd Mische, PC
Fairfax, VA
This is a response to your news release seeking comments on internet access to court documents.
I am an attorney practicing in Fairfax, Virginia, and I am a member of the Electronic Filing
Committee. Fairfax is the jurisdiction selected for the pilot project in the Commonwealth of Virginia
for electronic filing. Our committee has worked with the Clerk of Court to design the electronic
filing web site. We too are facing the dilemma of the traditional public access to courts versus
remote electronic access of the most detailed and sensitive personal and financial information of our
citizens. We are particularly concerned about divorce cases, which is, of course, not a concern to
your courts. In divorce cases, typical property settlement agreements have an unbelievable amount
of personal and financial detail, much of which is required by law. Persons with evil intent could
easily make a software robot to remotely access ten thousand property settlement agreements and
create a database of names, addresses, phone numbers, work addresses and phone numbers, social
security numbers and the account numbers of every credit card account that the parties have.
Certainly, this is a potential horror waiting for a place to happen.
I have drafted legislation being presented to the Virginia General Assembly this year for divorce
cases, which would have the electronic file be "sealed from remote electronic access" upon the
motion of either party. We would leave untouched the access that the public has enjoyed for 250
years in Virginia, to personally view the file in the Clerk's office.
Federal cases also often involve extremely sensitive personal and financial information of the
litigants. Such cases often involve intimate details about children, whose records have traditionally
been protected from public access. It is the seemingly universal opinion of practitioners here in
Virginia that we need to restrict our court files from remote electronic access. I often hear the
argument about "open government" and that only totalitarian societies have closed court systems.
If the public still has the access to files at the courthouse, as they always have, we will still have
"open government." We all have to file an income tax return, but no one is proposing that everyone's
income tax return be available for access over the internet. The fact that someone has a lawsuit
which is filed in a court operated by the government should not necessarily mean that every detail
of that person's life which is put into the court record is therefore open for public access by anyone
over the internet.
I hope these few comments from someone who is very involved in this question are helpful to you
in the decision that you need to make with regard to the federal judiciary.
No 160
1/17/00
Anne Gardner
AUSA
Eastern District Arkansas
Little Rock, AR
Below is a brief response to the Federal Judiciary request for comment on public access and privacy
issues. I am currently working on similar issues with state, local, and tribal governments in
cooperation with COSCA and NACM, the Department of Justice, and the National Criminal Justice
Association. The views represented below are my own, and not the official position of any of these
agencies. I would be glad to engage in further discussion with your office on this topic.
Response to Request for Comments - Privacy and Public Access to Electronic Case Files
Computerization has not only changed the way courts can do business, it has changed the way they must do business. The responsibilities of the court system to maintain public access to its processes and case records is coming into direct conflict with the privacy issues raised by electronic information exchange in all sectors of government and in e-commerce.
Electronic information systems have changed the concrete notion of court records from 'papers in a file' into a concept that includes a compilation of pieces of electronic information gathered from various sources and organized by an identifier. This information is two dimensional, meaning, information must be considered by its type, as well as the context in which it appears.
Information contained in the justice record can be "large or small," such as a single element (name) or a sum of many elements (indictment, pleading, order). Each element needs to be considered in context. For example, the data element "social security number" may never be publically accessible. The data that makes up the rest of that document, however, may be suitable for public access. Electronic systems do not see the document as a whole, but must process "releasing some data" and holding back other data. Systems must also be programmed to process data releases by context. For example, a data element such as "address" may be deemed publically accessible, generally. If, however, the address is that of a victim and appears in the victim statement or a court exhibit, it is probably not suitable for public access. Public access policy must be integral to system design in order to account for the nuances of this data.
As is evident in comparing the justice record in the old sense and the new, 'inconvenience or impossibility' that was an accepted part of paper record systems' privacy policies no longer provides adequate privacy protections in an electronic age. Broader access to personally identifiable information is an inherent result of new information technologies, and privacy policies must reflect the new information access, sharing, and analysis capabilities. It is unrealistic to create policy based a default to 'paper access' for protection. Similarly, it is important not to limit privacy policies to currently available information technologies. Today's technologies will give way to better, faster technologies that may change, again, the way we view information access. However, developing a policy rooted in "privacy principles" will allow justice agencies to be pro-active in adjusting to new technologies, rather than reacting to their effects.
For these reasons, the propositions in section 1 of the Criminal Case Files section are unrealistic. As noted in section 2 of the Civil Case File section, the difficulty in developing public access policy is determining what information is public. To honor the court's responsibility to promote openness of the justice system, public access may start with a broad access framework. Next, recognizing that information technology use and analysis capabilities have taken us beyond where we've been before, some restrictions on "gratuitous data" should be made. The test suggested, "not necessary to the determination of the case" or for personal safety reasons is a good place to start. In extreme cases, parties may request that the court seal documents containing sensitive data.
Finally, the discussion about 'levels of access' implies that the information is not truly public information. If the information is only available to those practitioners within the justice system or other individuals "with authorization," the information is better described as "discloseable" or confidential, rather than publically accessible.
No 161
1/18/00
Anonymous Attorney
RECOMMENDATION; Modify the definition of "public record" to afford privacy to certain matters
filed in federal court.
As a practicing attorney in an area not trial-practice in nature, I was a plaintiff in a lawsuit before a
federal court. It is in the context of my experience as a plaintiff, that I respond here to the issue of
public access to cases filed in federal court. I relish the opportunity to share my experience and
comment. The Judicial Conference of the United States is pondering the issue of electronic filings
and privacy, seeking to determine appropriate treatment of cases where anyone can simply download
files over the Internet. The issue pits privacy and press freedoms against one another, with necessary
considerations being explored as to whether the Conference should redefine "public records" to allow
for exclusion of matters in order to afford privacy and avoid the need for frequent consideration and
imposition of seals or tedious redaction of information. This is a very critical matter in my view.
Medical records, social security numbers and a plethora of private information is now available from
federal court cases and pleadings contained on the web. I am very against the approach to allow
pleadings, transcripts, motions and other case matters to be generally and readily available to the
public in this manner. I support a redefining of what should be deemed "public record" matter. I am
additionally concerned that if certain changes are adopted by the ABA to the Professional Codes of
Lawyer Conduct (concerning confidentiality of client information and secrets in which attorneys may
be allowed to release to a tribunal or Bar Counsel privileged or secret information obtained from the
client in the course of representation without the client's consent) that allowing such information to
be posted on the web would be a disaster that would harm the legal profession and the public. Thus,
certain exclusions must be incorporated to preserve the very nature and value of the legal profession.
No mention has been made in the proposed changes of the ability to have such matters sealed.
Absent appropriate attention to this, the consequence could mean clients choosing against bringing
suit, or being forthright with counsel, or using counsel at all, instead opting to act pro se, etc.
As a party who would bring a lawsuit, I may find the whole notion of having my entire life splashed
over the Internet a disincentive to my bringing the lawsuit, at least in federal court (unless I was the
type to simply thrive on publicity – and there are those in society who do). However, I believe that
this body should set a privacy standard, in this regard, that should be available for state courts and
all courts in the American legal system.
Certainly, as a plaintiff, I felt as though I was being punished (publicly flogged) because I had to
make my life so public just to assert my right to address what I considered a legitimate grievance.
In my case, I was additionally burdened because my relationships with my former attorneys
deteriorated and resulted in my having to terminate the relationship during the proceeding. Thus,
the acrimony is publicly available to be witnessed by all, very much to my dismay. Additionally, my
former counsel and I had a fee dispute, which in part, stemmed directly from the judge's concerns
that the attorney's fees were excessive. As a result of the judge's concern, my former counsel were
directed to file a limited justification of their fees. However, the pleading that was filed, absent my
approval, contained confidential or secret information about the decedent who was the subject of the
lawsuit. Upon my objection, the judge indicated she would allow the pleading to be withdrawn. My
former counsel agreed to have the pleading withdrawn. However, none of the matters involved were
allowed to be sealed, not even upon a motion expressing concern for the safety of the children
beneficiaries who received a portion of the settlement proceeds. Hence, all of our grief and anguish,
and the acrimony between plaintiff and defendant and between plaintiff and plaintiff's former legal
counsel became fodder for the net. Having all this play out over the Internet was not appropriate
in my view. We should not be made to feel punished or placed in potential danger for bringing our
lawsuit. These are my very personal feelings.
That cases filed in federal court are now totally open to the public by virtue of the Internet creates
a climate for leverage and manipulation of the plaintiff by defendants and vice versa. This can also
lend to blackmail (payment to avoid the filing of a case) and a presumption of guilt because the case
was filed (assuming the broad public may not understand the context of filings, but just see that a
lawsuit has been filed with all kinds of salacious allegations, etc.). I further believe this approach
(broad availability of case records over the Internet) could result in fewer cases being brought, more
cases being withdrawn, increased requests for seals and/or redaction (necessitating greater court
resources), etc. I certainly would have thought twice if I had known how public my life could
become (far too invasive with the additional element of the Internet). Also, I wonder how many
attorneys are making their clients aware of this consequence? Clients need to be told about this
because it adds a significant dimension. While judges may opt against having televised hearings,
allowing all matters involved in the case to be aired over the Internet seems somehow inconsistent
if part of the thrust is to preserve judicial decorum and privacy. I submit you can't have it both ways.
I do not believe it is in the best interest of the judiciary or the public to allow widespread, general
access of federal case matters over the Internet. There must be standards for determining what case
material or cases for that matter are to be given public or public record status, especially as the
Internet continues to have a pervasive and penetrating impact on society. Thus, the standard should
address whether the entire matter is to be given public status or whether certain parts of cases are to
be generically treated as non-public. This needs to be done in advance, beforehand because once a
document is made public, in the Internet age, there is no protection even if it is allowed to be
removed. Judges should be given principals and guides. We also need to ensure against abuse by
judges. Thus, there needs to be mandatory rules and also certain flexible guidelines. In that regard,
the Conference may wish to evaluate the definition of "public record or public matter" in the context
of the analysis used for libel/slander, i.e., public figure versus private figure. Treatment could also
be given to public issue versus private issue. For example where a government entity is being sued
or a class action is brought before a court. Certain kinds of matters likely warrant wide public
access. The danger is where to draw the line. I hope the Conference reviews the Nixon tapes
decision rendered by the U.S. Supreme Court and other cases that carve out standards for imposition
of a seal and use the thinking for establishing a generic standard to determine when a matter should
be excluded from public access. For example, in one case it was recognized that private,
embarrassing facts between parties in a divorce or custody dispute need not be made available for
public consumption.
Redaction solutions and seal solutions are not the answer because there is no guarantee that the task
can be handled and handled timely and appropriately by a limited court staff. Moreover, the court
would likely have to increase resources to handle the additional tasks. However, even with increased
resources, once something is placed on a web, even if it were removed, the harm is done. Thus, there
needs to be a pro-active approach to establishing standards before a document/matter is made public
and then qualifies for removal.
It used to be that public access to court records was in the best interest of society. Not anymore, in
my view social engineering is warranted, especially with the danger that marketers and others can
use the information inappropriately and to the detriment of individuals. Thus, this very public
process can serve to embarrass those individuals and plaintiffs who merely seek to right a wrong,
but could be exposed to whatever twist and ridicule, or danger could arise (being stalked or
threatened/kidnapped for ransom, denied employment, being fired, not being able to cope with
having one's private facts and life made public could also lend to suicide, threats against the judiciary
or its staff, hacker threats, etc.) We do live in a world where there is "Post Office Syndrome".
Obviously, there may be those who will go to great lengths to try to have a document removed.
Thus, allowing such open access of records by the courts likely will entail a need to invest in
resources to protect the security of personnel, computer systems and software. Enterprising parties
could even make a show out of the funniest or interesting court cases (television, web programs and
chatroom fare). After all, we live in a society where we now have "Internet Guy" who displays every
aspect of life on the Internet. Then, courts may see more suits for torts for using someone's name,
information, etc., as identity theft is on the rise. For that matter, even to the extent that attorney
signatures appear on pleadings over the net and can be lifted poses a great danger, especially if as
a society, we move forward digital signatures. We can see this coming. It's here. We need to protect
against this before it become a problem we can't solve. What will happen when attorney signatures
are of value and can be lifted off the net? Will we have to file documents with our fingerprints or
using a retinal security method? The Internet has transformed society overnight. We are behind in
protecting against certain dangers that we can readily see have occurred or are on the cusp of
occurring.
As a privacy advocate and as an attorney who has seen the impact of having my private grief and
anguish splashed all over the Internet in order to pursue a legal remedy, I can firmly state that if I
would be discouraged from bringing a lawsuit for this reason, just think what it might mean for the
average Joe. While this may be one method of cutting down the number of cases, it is against the
notion of having a legal system that invites those who have been wrong to pursue their rights.
We are at a critical point as a society in terms of dealing with the challenges that the Internet is
creating. However, we must get a hold of this beast. Please, I urge you to set standards for when
matters are to be deemed public, so that some semblance of privacy will still be preserved.
Obviously, certain judges did not relish the invasion of having their financial information disclosed
on the net. Also, the Internet means that everyone with a computer is now a member of the press and
can publish and republish. This was not what must have been envisioned as freedom of the press
under 1st amendment protections. For that matter, how costly will it be to society to have to address
increased instances of libel. I, respectfully, urge that the Conference take all necessary measures to
preserve and respect privacy. Who we are as individuals is integral to society. Every one who
comes to court should not have to waive their privacy and simply become an "Internet Persona". The
risk to society from transforming brick houses in to glass houses is not one we should take lightly.
Give us the ability to opt out if we wish to opt in to the legal system to pursue our right to a legal
remedy (and this should also apply in certain respects to instances where we are forced into court).
Courts may even be in threat as parties opt for arbitration to simply avoid the public display over the
net. Serious thought about lawyer signatures on pleadings being available for public consumption
is needed. Lawyers can change social security numbers if someone lifts them, but are not as flexible
in changing their signatures (also fingerprint security and retinal security will, for sure, do away with
individual privacy as we know it if lawyers are forced to do this in lieu of using their signatures on
pleadings). This is the age we live in!
No.162
1/18/01
Richmond, VA
I have a deep concern about allowing public internet access to sensitive, identifying information on
individuals who have cases with the Federal Courts. My concern is that any individual may obtain
social security numbers, bank and credit account numbers, maiden names, medical information, etc.
over the internet. This information can be used to steal one's identity for purposes of obtaining credit
fraudulently or to obtain identity for illegal aliens or others needing new identity. This information
could also be used by stalkers and others for purposes of harassment. Law enforcement, credit
agencies, and the Social Security Administration advise to be careful about who you give your social
security number to. Many Department of Motor Vehicles allow the option of using a DMV issued
drivers license number instead of a social security number. In addition, it is not necessary to provide
the Federal Government with a social security number for employment purposes.
I agree that bankruptcy and federal criminal cases should be made available to the public, however,
sensitive identifying information should be removed from public viewing. It should be the
responsibility of the Federal government to protect a citizen's privacy. Please don't make it easy for
criminals to commit crimes by allowing access to this sensitive information. I hope you will take my
remarks into consideration when making your decision.
No.163
1/18/01
Englewood Cliffs, NJ
I am a firm believer in the right to access. However, I don't think the right to access ever meant
"anonymous" access. Making all documents publicly available by anonymous users should not be
allowed. Some kind of verification/ user tracking should be required. In the past, by having to show
up at a town or county office, make a request in person, fill out paperwork -- all of this resulted in
the person accessing the information identifying him/herself, a process of public visibility. Some
method of "account creation" would be ideal. The creation should probably take place at some
government (state, municipality, something) office, in person. Perhaps it could be done via mail /
fax. The idea is that it would be done in a mostly verifiable way, and would thereby require
information users to identify themselves. This account could then be used online, thereby retaining
the benefit of online access: access anytime, text searches, composite searches, etc. Of course, there
are many technical and practical problems with validation of online users, but certainly the risk is
much lower than having no identification process at all. Additionally, the system could potentially
have the added benefit of, once in place, allowing people whose information was accessed to have
access to that information. This would extend the benefits of digital availability even further. If Mr.
Smith wants to know how much Mr. Jones paid in property tax, he should be willing to want it to
the extent that he doesn't mind Mr. Jones knowing that he found out. Currently, with the physical
file method, such information is hard or impossible to get.
No. 164
1/18/01
Chicago, IL
I am a very experienced computer professional, and have spent the last 10 years working with large
and very large databases (data warehouses). So I am very aware of how information from disparate
sources can easily and rapidly be combined. Criminal Case Files: I am in favour of the alternative
that states: "1.Do not provide electronic public access to criminal case files". I cannot see how
unlimited, or even limited electronic access can serve the public good, but can easily see how it can
do the opposite. Imagine anyone doing a "white page" search on the web for an old friend, and
coming up with not only their name and address, but also their criminal or victim history.
Civil cases files: I think that this is more difficult problem, and prefer the alternative that states:
"Maintain the presumption that all filed documents that are not sealed are available both at the
courthouse and electronically.").This might add significant time and cost to civil cases, since the
parties might argue about discloseable items, and use disclosure as a bargaining chip in the
settlement. And what about prior cases, that were settled before the rules are established? Will there
be a presumption of disclosure or non-disclosure? Will these cases be re-opened to settle that issue?
Probably the best solution is to only carry new civil cases electronically. But none of the other
alternatives seem workable; as a computer professional, I am very skeptical about the "levels of
access" solution. It is difficult to enforce, subject to hacking, and does not protect against second
readers who obtain copies that were legally obtained.
No 165
1/19/00
Charlotte Hardnett, Acting General Counsel
Social Security Administration
Arthur Freid, Former General Counsel
Social Security Administration
In response to the public notice at 65 Fed. Reg. 67,016 (2000), the Social Security Administration
believes that Federal court records in Social Security cases should not be made available to the
public at large through the use of the Internet. In addition, we offer the following general and
specific comments on the privacy and security implications of Judicial Conference proposals for
providing electronic public access to Federal court case files.
The notice observes that electronic court files may be "viewed, printed, or downloaded by anyone,
at any time" and such universal, instantaneous access to court files may be substantively different
from accessing such paper records at the courthouse. Id. at 67,017. Because Internet access by the
general public to the complete court records of Social Security claimants would substantively
different and entail potential harms for these claimants, the Social Security Administration
recommends that electronic case files be available only to judicial personnel and parties to the
particular court proceeding. In so recommending, the Social Security Administration does not seek
to change the traditional access of the general public to paper records at the courthouse. Social
Security records that must be filed in court cases pursuant to 42 U.S.C. 405(g) contain the
claimant's application for benefits, disability and vocational reports, administrative determinations
and decisions, and medical and vocational evidence submitted in support of the application. These
materials include the individual's Social Security number, date of birth, address, telephone number,
other names, including maiden name, and in the case of disability insurance benefits, earnings
records. In Supplemental Security Income cases, the application also includes other personal
financial information. The parties' briefs also contain detailed medical and other personal
information. In most instances, this information is not releasable by the Social Security
Administration, absent the consent of the claimant. Internet disclosure of Social Security case files
would increase the incidents of identity fraud. The information in these files is personal and could
be extremely embarrassing, especially with respect to medical treatment reports, including mental
health examinations. The potential for fraud and invasion of privacy based on Internet disclosure
of personally identifiable information in these records may chill the right of claimants to obtain
judicial review of administrative decisions on their claims. On balance, such disclosures are simply
too high a price to pay to justify the benefits of general public access to this court information. As
the Courts embark on the implementation of new data systems that will support their operations and
facilitate electronic access to the files they maintain, this is an opportune time to establish policies
properly limiting access to this personal and sensitive information.
It should not be overlooked that typically, Social Security claimant litigants have simply chosen to
pursue their right to judicial review of Agency claims decisions. 42 U.S.C. 405(g). They would
likely be among those most significantly affected by global electronic access to Federal court case
files due to the large quantity of detailed personal, medical, and financial information contained in
their court case files. These litigants may be aged or disabled and, therefore, could suffer greater
distress or harm than other litigants due to invasions of personal privacy or criminal activities
stemming from the posting of personally identifiable information in their Federal court records on
the Internet. Social Security claimants' records inevitably contain sensitive information for which
they have some privacy expectations even though they are pursuing their claims in court. Court
filings in these cases should be protected from unfettered disclosure on the Internet.
Our comments must be placed in the context of the Social Security Administration's longstanding
attentiveness to the privacy of Social Security records. Even in the electronic age, the Agency's
Internet site, www.ssa.gov, assures the public of such confidentiality, stating: " . . . the privacy of our
customers has always been of utmost importance to the Social Security Administration." In fact our
first regulation, published in 1937, was written and published to ensure your privacy. Our concern
for your privacy is no different in the electronic age. Analogously, Kenneth S. Apfel, Commissioner
for Social Security, testified before the House Ways and Means Committee, Subcommittee on Social
Security, last March: "As electronic services expand, we are fully committed to prudent
authentication and security technologies to protect the privacy of the information with which we are
entrusted." Given the realities of moving to the electronic environment and longstanding policy to
protect the privacy of Social Security claimants' records, the Social Security Administration
advocates strongly for protecting personally identifiable information of claimants from Internet
disclosure, even when the information is in Federal court case files at the courthouse. Comments
are organized according to the proposed Judicial Conference policy options printed in boldface
below. 65 Fed. Reg. 67,016-19.
Policy Alternatives on Electronic Public Access to Federal Court Case Files
Regardless of what entity addresses the issues of privacy and electronic access to case files, the
effort must be made to balance access and privacy interests in making decisions about the public
disclosure and dissemination of case files. The policy options outlined below are intended to
promote consistent policies and practices in the federal courts and to ensure that similar protections
and electronic access presumptions apply, regardless of which federal court is the custodian of a
particular case file. One or more of the policy options for each type of case file may be
recommended to the Judicial Conference for its consideration. Some, but not all of the options are
mutually exclusive.
We highly commend the efforts of the Judicial Conference to develop a nationwide Federal court
electronic filing procedure that addresses privacy and security concerns. This is a difficult objective.
Congress has attempted to address closely related issues through legislation, but with limited results
to date that provide no comprehensive legislative solution. The Executive Branch has only limited
powers concerning the treatment of Social Security claimants' records in the courts. We are pleased
that through Judicial Branch efforts the Federal Government can serve as a role model regarding
Internet disclosures of personally identifiable information. Accordingly, this effort to implement a
uniform and sound policy is laudable.
Given the efforts that have already been undertaken by all three branches of the Federal Government
to establish privacy and security safeguards for personally identifiable information, it would be
anomalous to take an inconsistent path by establishing any procedures that would make Social
Security numbers and other identifying information available through the Internet. Although the
United States courts have a long tradition of maintaining open access to their records, they recognize
the access rights are not absolute and technology may affect the balance between access rights and
privacy and security interests. 65 Fed. Reg. 67,107, citing United States Department of Justice v.
Reporters Committee For Freedom of the Press, 489 U.S. 749 (1989) and Nixon v. Warner
Communications Inc., 435 U.S. 589 (1978). Further, through their supervisory powers, courts deny
access to court files that might become a vehicle for improper purposes. Id. at 598. Congress has
long regulated disclosures of certain personally identifiable information. E.g., 42 U.S.C. 1306
(felony for disclosure of Social Security Administration information), 1320b-11 (felony for
disclosure of confidential blood donor information), and 290 dd-2 (fines for violating confidentiality
of alcohol and drug abuse treatment records); 5 U.S.C. 552a(i) (misdemeanors for Privacy Act
disclosures); 26 U.S.C. 6103 and 7213(a) (felony for disclosure of tax returns and tax return
information). Recently, Congress established civil and criminal penalties for improper disclosures
of identifiable health information in the Health Insurance Portability and Accountability Act of 1996
(HIPAA), Public Law 104-191, 1177.
Under HIPAA, the Department of Health and Human Services issued comprehensive
regulations to protect the privacy of individual medical records. 45 CFR Parts 160 and 164,
Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82,462-01
(2000). See also Johnson v. Sawyer, 120 F.3d 1307 (5th Cir. 1997) (including taxpayer's middle
initial, age, home address, and occupation in IRS press release about taxpayer's criminal conviction
was wrongful disclosure of return information, even if such information was included in court
record, where immediate source of such information was taxpayer's return).
Internet disclosure of personally identifiable information is particularly inappropriate in context
of Social Security litigation. It is wholly contrary to the overall privacy and security protection
framework within which the Social Security Administration operates. Social Security
Administration policy is not to disclose personal information pursuant to a Federal or State court
order or other legal process unless the disclosure is permitted by the Social Security Act. 42 U.S.C.
1306(a). If pursuant to law the Social Security Administration must disclose personally identifiable
information in court filings, once the information is disclosed, its confidentiality cannot be protected.
20 C.F.R. 401.190. Yet much of this information remains "especially sensitive." Participation in
Social Security programs is mandatory, and people cannot limit what information is given to the
Social Security Administration. Id. Further, it is likely that most Social Security disability claimants
do not fully appreciate the public nature of their court case files when they seek judicial review of
administrative denial of their claims. As claimants become aware of global electronic access to
Social Security disability court case files, some may decide not to request judicial review of an
administrative denial to avoid making public their private information. Thus, completely open access
to Social Security litigation case files would likely have a chilling effect on seeking judicial review
of administrative decisions on Social Security claims. Such a policy alternative is not warranted as
the cost of exercising a Social Security claimant's legal right to seek judicial review of an
administrative decision under 42 U.S.C. 405(g). Any such chilling effect would be in tension with
the congressional intent to furnish Social Security claimants the right to judicial review. 42 U.S.C.
405(g)-(h). A claimant's right to such review necessarily outweighs any general public interest in
universal, instantaneous electronic access to a claimant's personally identifiable information.
Civil Case Files
Since the Social Security Administration is a party in a large volume of civil litigation, the proposed
policies in this area are of greatest concern to the Agency. The civil case record in Social Security
cases generally includes the pleadings, the parties' briefs on the merits of the Social Security claim,
the administrative record, and the court's decision. The administrative record contains large amounts
of personally identifiable information, described below; in addition, it contains the application for
Social Security benefits, claimant statements and reports to the Agency, Agency determinations, and
Administrative Law Judge hearing testimony. Merits briefs must refer frequently and in detail to the
administrative record and, therefore, contain personally identifiable information as well. Any
docketed court filing in a Social Security case may contain the claimant's Social Security number.
1. Maintain the presumption that all filed documents that are not sealed are available both at the
courthouse and electronically. This approach would rely upon counsel and pro se litigants to protect
their interests on a case-by-case basis through motions to seal specific documents or motions to
exclude specific documents from electronic availability. It would also rely on judges' discretion to
protect privacy and security interests on a case-by-case basis through orders to seal or to exclude
certain information from remote electronic public access.
The Social Security Administration does not consider sealing records on a case by case basis as a
viable method for addressing privacy and security of Social Security claimants involved in civil
litigation with the Agency. The potential harms outweigh the benefits of general public in Internet
access. First, virtually every Social Security case file contains sensitive information. Presumably,
Social Security claimants would not want such personal information to be made available to the
general public through the Internet. Such disclosure would expose Social Security claimants to
invasions of privacy and criminal activities, such as identity theft, because merely publishing Social
Security numbers affords criminals the information they need to perpetrate identity theft. There can
be no public interest in facilitating such activity, and certainly none that outweighs the claimant's
interest in some measure of security while pursuing a claim for Government benefits.
Second, due the pervasiveness of personally identifiable information in Social Security court case
files and the large volume of Social Security civil litigation, this policy alternative would be
extremely burdensome for the courts and the parties. In each Social Security case, one or more
courts could be called upon to determine whether to seal one or more of the documents containing
personally identifiable information.
Third, we know of no legal authority for sealing Social Security court records at the courthouse.
Moreover, moving to the electronic filing environment should not alter the traditional availability
of these records at the courthouse. Accordingly, courts may tend not to seal court Social Security
case filings under this alternative, making them available to the general public on the Internet. As
indicated herein, the Social Security Administration opposes this result. Moving to the electronic
filing environment should not entail untoward invasions of personal privacy and the potential
victimization of Social Security claimants. They are just pursuing a right to judicial review under
the Social Security Act. 42 U.S.C. 405(g).
Fourth, a single, nationwide approach is necessary to help ensure uniform treatment of Social
Security claimants and consistent handling of their records in Federal court litigation. Clearly, this
is not an appropriate area for the percolation of ideas through litigation in the various district and
appellate courts. It is inappropriate for Social Security claimants litigating in one court to be subject
to greater risks due to less protective decisions about sealing records in that court, while those
litigating in another court enjoy greater protections. Indeed, district and appellate courts would be
in an awkward position if asked to create their own rules concerning Internet disclosures of Social
Security records. In fact, it could lead Congress to amend the Social Security Act with respect to
protecting claimants' privacy and security interests uniformly.
2. Define what documents should be included in the "public file" and, thereby, available to the
public either at the courthouse or electronically. This option would treat paper and electronic access
equally and assumes that specific sensitive information would be excluded from public review or
presumptively sealed. It assumes that the entire public file would be available electronically without
restriction and would promote uniformity among district courts as to case file content. The challenge
of this alternative is to define what information
should be included in the public file and what information does not need to be in the file because it
is not necessary to an understanding of the determination of the case or because it implicates privacy
and security interests. Since this policy alternative links the public file in the courthouse and on the
Internet, the Social Security Administration does not view this as a workable alternative for the same
reasons. Although this alternative may handle Internet disclosures more uniformly than in the
previous alternative, the unacceptable result of inappropriate Internet disclosures of Social Security
claimants' personally identifiable information would occur under this approach.
3. Establish "levels of access" to certain electronic case file information. This contemplates use of
software with features to restrict electronic access to certain documents either by the identity of the
individual seeking access or the nature of the document to which access is sought, or both. Judges,
court staff, parties and counsel would have unlimited remote access to all electronic case files. This
approach assumes that the complete electronic case file would be available for public
review at the courthouse, just as the entire paper file is available for inspection in person. It is
important to recognize that this approach would not limit how case files may be copied or
disseminated once obtained at the courthouse.
If Internet access to Social Security court case files were restricted to judicial personnel and parties
to the litigation, the Social Security Administration would favor this alternative. As the Judicial
Conference has observed, access and privacy interests must be balanced in deciding about public
electronic disclosure and dissemination of court case files. In balancing these interests, we endorse
the use of technology to shield personally identifiable information in courthouse records of Social
Security claimants from Internet disclosure to the general public.
It is noted, however, that filing paper copies of the administrative record portion of the Social
Security court case record is the best currently available alternative. Currently, scanning is the only
way to electronically file these records and it is of limited value for several reasons. Scanning the
many, lengthy records would require the considerable additional funding. Further, scanning does
not produce word-searchable texts that are reliable. At present, optical character recognition
conversion of scanned records generates inaccuracies not found in paper copies due to the prevalence
of forms and non-text materials, e.g., medical graphs. Review and correction of the numerous,
inevitable inaccuracies would require additional funding and, through human error, the electronic
product would still contain more errors than a paper copy. Current technology for scanning and
viewing voluminous, non-word searchable texts does not permit quick and reliable comparisons of
various parts of the administrative record as manual working with paper copies does. Finally, failure
to rely on accurate records would lead to erroneous court decisions.
4. Seek an amendment to one or more of the Federal Rules of Civil Procedure to account for privacy
and security interests.
The Social Security Administration would be amenable to employing this approach to accomplish
the objectives described above. For this alternative, we would want to participate in the development
of any such amendments sufficiently to help ensure the privacy and security of personally identifiable
information in Social Security case records.
Criminal Case Files
The Social Security Administration prosecutes a limited volume of criminal litigation through United
States Attorneys.
1. Do not provide electronic public access to criminal case files. This approach advocates the
position that the ECF component of the new CM/ECF system should not be expanded to include
criminal case files. Due to the very different nature of criminal case files, there may be much less
of a legitimate need to provide electronic access to these files. The files are usually not that
extensive and do not present the type of storage problems presented by civil files. Prosecution and
defense attorneys are usually located near the courthouse. Those with a true need for the information
can still access it at the courthouse. Further, any legitimate need for electronic access to criminal case
information is outweighed by safety and security concerns. The electronic availability of criminal
information would allow co-defendants to have easy access to information regarding cooperation and
other activities of defendants. This information could then be used to intimidate and harass the
defendant and the defendant's family. Additionally, the availability of certain preliminary criminal
information, such as warrants and indictments, could severely hamper law enforcement and
prosecution efforts.
No comment.
2. Provide limited electronic public access to criminal case files. This alternative would allow the
general public access to some, but not all, documents routinely contained in criminal files. Access
to documents such as plea agreements, unexecuted warrants, certain pre- indictment information and
presentence reports would be restricted to parties, counsel, essential court employees, and the judge.
If this policy alternative is chosen, the Social Security Administration is concerned about any
personally identifiable information, especially Social Security numbers, that would be made
available to the public on the Internet. Indictments of Social Security number fraud cases always
include the victim's Social Security number. Further, indictments of representative payees usually
include personally identifiable information about the Social Security beneficiary. Court records may
contain other personally identifiable information about victims and witnesses. In the case of
fraudulent use of Social Security numbers it would be an intolerable irony if the victim's Social
Security number were made available to the public on the Internet.
Bankruptcy Case Files
Generally, the Social Security Administration is concerned about making Social Security numbers
and other personally identifiable information in bankruptcy case files available through the Internet.
We would support efforts to restrict Internet access to such information.
1. Seek an amendment to section 107 of the Bankruptcy Code. Section 107 currently requires public
access to all material filed with bankruptcy courts and gives judges limited sealing authority.
Recognized issues in this area would be addressed by amending this provision as follows: (1)
Specifying that only "parties in interest" may obtain access to certain types of information; and (2)
enhancing the 107(b) sealing provisions to clarify that judges may provide protection from
disclosures based upon privacy and security concerns.
For the reasons previously stated, we believe that personally identifiable information, and Social
Security numbers in particular, should not be included on Internet postings of bankruptcy case
filings.
2. Require less information on petitions or schedules and statements filed in bankruptcy cases.
For the reasons previously stated, we believe that personally identifiable information, and Social
Security numbers in particular, should not be included on Internet postings of bankruptcy case
filings.
3. Restrict use of Social Security, credit card, and other account numbers to only the last four digits
to protect privacy and security interests.
The Social Security Administration concurs.
4. Segregate certain sensitive information from the public file by collecting it on separate forms that
will be protected from unlimited public access and made available only to the courts, the U.S.
Trustee, and to parties in interest.
The Social Security Administration has no objection.
Appellate Cases
1. Apply the same access rules to appellate courts that apply at the trial court level.
The Social Security Administration concurs.
2. Treat any document that is sealed or subject to public access restrictions at the trial court level
with the same protections at the appellate level unless and until a party challenges the restriction in
the appellate court.
Any document that is sealed or subject to public access restrictions at the trial court level should
enjoy the same protections at the appellate level, until a court of competent jurisdiction unseals the
documents or revises the access restrictions.
In conclusion, we appreciate the opportunity to comment in this matter. Pursuant to the request in
the Federal Register notice, we are interested in participating in a public hearing, if one is held.
For additional assistance in this matter, you may contact us by e-mail reply. Additionally, you may
directly contact the undersigned at 410-965-0600, or Donna J. Fuchsluger at 410-965-3209.
Very truly yours,
(signed by Charlotte J. Hardnett)
Charlotte J. Hardnett
Acting General Counsel
Enclosure
cc:
Mr. Deyling
August 2, 1999
Mr. Leonidas Ralph Mecham
Secretary
Judicial Conference of the United States
1 Columbus Circle, N.E.
Washington, D.C. 20544
Dear Mr. Mecham:
I am writing to request the support of the Judicial Conference of the United States in ensuring that
the confidentiality of information regarding Social Security and Supplemental Security Income (SSI)
claimants under the control of the courts, is maintained. While we strongly support electronic filing
of court documents, we believe that general publication of administrative transcripts and parties
briefs on the Internet raises significant concerns.
The administrative transcripts contain the individuals application for benefits, disability and
vocational reports, administrative determinations and decisions, and medical and vocational evidence
submitted in support of the application. These materials include the individuals Social Security
number, date of birth, address, telephone number, other names including maiden name, and in the
case of disability insurance benefits, earnings records. In Supplemental Security Income cases, the
application will also include other financial information. The parties briefs
contain detailed medical and other private information.
The posting of administrative records and briefs on the Internet substantially increases the risk of
identity theft, an issue of great concern to the President, the Congress, and the Social Security
Administration. In addition, it makes readily available personal information that would not be
releasable in most instances by the Social Security Administration, absent the consent of the
claimant. Finally, because of the potential for fraud and the invasion of privacy, the availability of
this information on the Internet may chill the right of claimants to appeal benefit denials to district
court. As the Courts embark on the implementation of new data systems that will support their
operations and facilitate electronic access to the files they maintain, this is an opportune time to
establish policies properly limiting access to this personal and sensitive information.
Identity Theft
Armed with only a persons Social Security number, an unscrupulous individual could obtain a
persons welfare benefits or Social Security benefits, order new checks at a new address on that
persons checking account, obtain credit cards, or even obtain the persons pay check. Greidinger v.
Davis, 988 F.2d 1344, 1353 (4th Cir. 1993) (citations omitted). Clearly, the availability and
accessibility of the Social Security number as well as various additional forms of personal identifying
information on the Internet would significantly enhance the risk of identity theft, the prevalence and
cost of which are growing. For example, the General Accounting Office (GAO) reported that the
actual losses to individuals and financial institutions that the U.S. Secret Service had tracked
involving identity fraud totaled $450 million in 1996, and $745 million in 1997.
Identity Fraud: Information on Prevalence, Cost, and Internet Impact is Limited, May 1, 1998,
GGD-98-100BR, at 29. Further, GAO reported that the Social Security Administrations
investigations of Social Security number misuse increased nearly fourfold from 1996 to 1997. Id.
at 31.
Concerned by the dramatic increase in identity theft, Congress enacted the Identity Theft and
Assumption Deterrence Act of 1998, P. L. No. 105-318, 112 Stat. 3007 (1998). The Act expanded
18 U.S.C 1028 to criminalize the theft of identity information, and established restitution provisions
for individual victims of identify theft. In expanding the current law, the Senate Judiciary
Committee noted that [t]oday criminals do not necessarily need a document to assume an identity;
often they just need the information itself to facilitate these types of crimes. S.Rep. No. 105-274, at
5 (1998). The Senate Judiciary Committee also noted the statistics contained in the GAO report
discussed above, and concluded that identify theft was a proliferating problem which crossed State
lines and required Federal action. Id. at 6. It also found that increasingly criminals involved with
identify theft are part of international syndicates committing financial, drug-related, immigration and
violent crimes. Id. at 7. More recently, the
White House announced its strategy to implement this legislation by launching a vigorous identity
theft enforcement and prevention strategy. White House Press Release, The Clinton-Gore Plan for
Financial Privacy and Consumer Protection in the 21st Century (May 4,
1999).
Claimants Privacy Interest in Preventing Wide Dissemination of Medical Records I am also
concerned about the availability on the Internet of plaintiffs medical records that are contained in
their entirety in the administrative transcript and summarized in the briefs. Medical records typically
contain information about a plaintiffs health that he or she had not previously held out for wide
public scrutiny, and may contain information about matters of an especially sensitive nature, e.g.,
HIV status, mental illness, substance abuse, etc. The sensitivity of such information is evident in
the procedures and safeguards mandated by Congress. See, e.g., 42 U.S.C. 1320b-11(d) (protecting
the confidentiality of blood donor records and directing that address information and related blood
donor records must be destroyed upon completion of their use in providing the notification for which
the information was obtained, so as to make such information and records undisclosable.); 42 C.F.R.
Part 2 (imposing restrictions, pursuant to Congressional statutory provisions to prohibit the
disclosure and use of alcohol and drug abuse patient records which are maintained in connection
with the performance of any federally assisted alcohol and drug abuse program). Pending legislation
in the Congress demonstrates the public concern about the confidentiality of medical records. See,
e.g., The Patients Bill of Rights, S.240, 106th Cong. (1999); Medical Information Privacy and
Security Act, S.573, 106th Cong. (1999); and The Health Care Personal Information Nondisclosure
Act of 1999, S.578, 106th Cong. (1999).
Further, the aforementioned categories of personal information and medical records are protected
by the Privacy Act, 5 U.S.C. 552a. While the Privacy Act is not binding on the courts, it would
generally preclude an individual from obtaining the same information directly from the Agency.
The Privacy Act provides that [n]o agency shall disclose any record which is contained in system of
records by any means of communication to any person, or to another agency, except pursuant to a
written request by, or with the prior written consent of, the individual to whom the record pertains
[subject to 12 exceptions]. 5 U.S.C. 552a(b). One of those exceptions is that information must be
disclosed if required by the Freedom of Information Act (FOIA), 5 U.S.C. 552.
However, the FOIA identifies nine categories of records that are exempt from mandatory
disclosure. Exemption (b)(6) specifically exempts from disclosure, personnel and medical files and
similar files the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy. 5 U.S.C . 552(b)(6).
Additionally, Social Security numbers enjoy special protection under the Privacy Act. Pub.L. 93-579
7; reprinted in, 5 U.S.C. 552a note. In its report supporting the adoption of this provision, the Senate
Committee stated that the extensive use of Social Security numbers as universal identifiers in both
the public and private sectors is one of the most serious manifestations of privacy concerns in the
nation. S.Rep. No. 93-1183 (1994), reprinted in, 1974 U.S.C.C.A.N. 6916, 6943.
Section 205(g) of the Social Security Act, 42 U.S.C. 405(g), requires the Commissioner to file
administrative transcripts in court when a claimant seeks judicial review of a final administrative
decision. Consequently, these transcripts then become a judicial record. However, Congress never
contemplated that such records should be published for unrestricted, public viewing on
the Internet. While the public has a general right to inspect and copy judicial records and documents,
this right is not absolute. Nixon v. Warner Communications Inc., 435 U.S. 589, 597-98 (1978).
Every court has supervisory power over its own records and files, and access
has been denied where court files might become a vehicle for improper purposes. Id. at 598.
Currently, transcripts are only available to a member of the public if that individual requests the case
file, in person at the courthouse. This process at the courthouse typically involves filling out a
request form, which, at a minimum, requires the identity of the requestor. Thus, from a practical
standpoint, availability of court documents in the courthouse does not significantly prejudice
plaintiffs privacy expectations. Conversely, publishing the transcripts on the Internet greatly
infringes upon plaintiffs privacy concerns. Any individual has ready access to the electronic
database of all cases filed electronically and can easily identify the subset of Social Security cases.
Then, in only a matter of minutes, that individual, located virtually anywhere in the world, can view
and download personal and confidential information, which pursuant to the Privacy Act and the
FOIA, would not be available from Federal agencies and would be available in a limited manner at
the courthouse. Thus, unlimited accessibility on the Internet to such records causes an untoward
intrusion into plaintiffs privacy.
In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court upheld a States right to record, in a
centralized computer file, the names and addresses of all persons who obtain prescribed drugs for
which there is both a lawful and unlawful market. But in his concurring opinion, Justice Brennan
noted that [b]road dissemination by state officials of such information, however, would clearly
implicate constitutionally protected privacy rights. Id. at 606 (Brennan,J., concurring). He further
indicated that [t]he central storage and easy accessibility of computerized data vastly increase the
potential for abuse of the information, and I am not prepared to say that future developments will not
demonstrate the necessity of some curb on the technology. Id. at 607.
The difference in plaintiffs privacy interest in information which must be manually collected versus
that of information which is readily accessible on an electronic database was recognized by the
Supreme Court in United States Department of Justice v. Reporters Committee For Freedom of the
Press, 489 U.S. 749 (1989). In Reporters Committee, the issue was whether the disclosure of the
Federal Bureau of Investigation criminal identification records, sometimes referred to as rap sheets,
could reasonably be expected to constitute an unwarranted invasion of personal privacy within the
meaning of the FOIA. 489 U.S. at 751. The Court, although recognizing that much of the rap sheet
information was a matter of public record, observed that its availability and dissemination was
limited. Id. at 753. In holding that the information was exempted under the FOIA, the Court wrote
that there is a vast difference between public records that might be found after a diligent search of
courthouse files. .. and a computerized summary located in a single clearinghouse of information.
Id. at 764.
If administrative transcripts and briefs in Social Security cases are made available on the Internet,
it will substantially increase the possibility of identity theft and substantially prejudice plaintiffs
privacy concerns. Ultimately, it also may have a chilling effect on a claimants willingness to bring
a civil court action pursuant to 42 U.S.C. 405(g). As noted by President Clinton upon signing the
Identity Theft and Assumption Deterrence Act of 1998 into law, [a]s we enter the Information Age,
it is critical that our newest technologies support our oldest values. Statement by President William
J. Clinton Upon Signing H.R. 4151, 34 Weekly Comp. Pres. Doc. 2203 (Nov. 9, 1998). Further,
Chief Judge Sifton of the Eastern District of New York and Chief Judge Matia of the Northern
District of Ohio have acted vigorously in response to these concerns. Chief Judge Sifton issued a
standing order prohibiting electronic filing of transcripts and litigants briefs in Social Security cases
to protect plaintiffs in Social Security benefits cases from the dangers and invasions of privacy that
could readily result from having such private and personal information easily attainable on the
Internet. Chief Judge Matia also confirmed to us that such materials maintained by his court, will
not be made accessible on the Internet to the general public.
In conclusion, I strongly oppose the ready availability of Social Security transcripts and briefs on the
Internet. I am confident that technological solutions exist which would allow electronic filing of
the transcripts and litigants briefs but still safeguard the plaintiffs privacy interests. If it would help
to assist your efforts, we would welcome an opportunity to discuss alternative measures with Judicial
Conference representatives. I request your strong support in encouraging courts not to make this
information available online in the various electronic filing efforts either currently underway or that
may be undertaken by the courts in the future.
Very truly yours,
Arthur J. Fried
General Counsel
No. 166
1/20/01
Seattle, WA
I hope this switches to a secure connection when I press submit because you are asking people to
jeopardize their privacy by requiring that they send personal information over what doesn't appear
to be a secure connection. My concern about internet access to court cases is the potential for others
getting access to personal information present in court documents. This concern is for two reasons -
the first is that victims of stalking or domestic violence need to keep their personal whereabouts
hidden. (I didn't mind sending you my address because it is a PO box and does not reveal my
physical location.) The other concern is that access to personal information increases one's chances
of becoming a victim of identity theft.
No. 167
1/20/01
Harry Hammitt
Editor/Publisher, Access Reports
Lynchburg, VA
I have followed the access and privacy debate on court records at both the federal and state levels.
I have testified before a judicial committee of the Washington State Judiciary reviewing its own
dissemination policies. I thought I would submit a few comments on the outlines of potential
policies for the U.S. court system.
As more information becomes available electronically and courts move closer to creating all their
records in electronic form, as well as accepting more and more filings from parties to litigation and
others, it would set a dangerous precedent if the court established some kind of blanket knee-jerk
policy to prohibit access to large portions of court records solely because they have the potential to
constitute an invasion of personal privacy. We have been told for years that computers will make
information more useful, not less, and to remove large portions from the public record when the
privacy alarms are sounded would not be appropriate information policy.
That having been said, I believe that there is information in many court files — Social Security
numbers, sensitive financial information, intimate sexual and family details — that should not
routinely be made public. I have come to the conclusion that we as a society have not conducted the
necessary debate, and probably never will, as to what information in traditionally public records
should be public and what should be private. Nevertheless, we can make some rational decisions
and set policy goals that can achieve an acceptable consensus.
My first and foremost concern in this area is what I see as the acceptance of the U.S. Supreme
Court's decision in Department of Justice v. Reporters Committee for Freedom of the Press as being
the correct analysis of these issues. In my opinion, this is far from the truth, and, while Reporters
Committee is the only analysis of related issues by the Supreme Court, it is an extremely poorly
reasoned decision that is neither supported by the language or the legislative history of the Freedom
of Information Act, doesn't even address the narrow issues that were before the Court, and has been
much too readily accepted by federal appellate courts and, more recently, state appellate and supreme
courts. Of course lower federal courts are bound by Supreme Court decisions, but Reporters
Committee addresses only an interpretation of Exemption 7(C) of the Freedom of Information Act,
nothing more, and need not be expanded exponentially to cover any access/privacy conflict. I would
urge you to view Reporters Committee in a very limited sense and not to take it as gospel.
Beyond botching the analysis of access/privacy issues, another strand that emanates from the
Reporters Committee decision that has greatly muddied the waters is the notion that the Freedom of
Information Act, and by implication any public access scheme, was created solely for allowing
individuals to find out what their government was up to, to shed light on government activities and
operations. The Court's analysis in this area stems from a total misreading of the public interest
standard incorporated in the FOIA for fee waivers, which provides that waivers should be given
when disclosure will significantly contribute to public understanding of government operations and
activities. A fee waiver under the FOIA is a benefit, not a right, and Congress put the burden on the
requester to provide convincing evidence that he or she deserved this further benefit. But general
access to government records is a statutory right, not an added benefit, and it is in no way tempered
by what the records might reveal. It is subject to nine exemptions, but those don't serve to thwart
the ability to request the information. What this misreading accomplishes, in my view, is to assume
that requests for public records are somehow inappropriate if they do not reveal information about
the government. This of course begs the question of why the information was collected by the
government in the first place if it had no value to the government and didn't relate to government
functions. My firm belief is that the Freedom of Information Act is a color-blind access statute
designed to allow individuals access to government records period. This leads me to the
accountability question that seems to have been impaired by the Court in Reporters Committee by
being limited to information that sheds light on government activities or operations. Accountability
flows from public access precisely because the records are public. Government has a greater
incentive to behave ethically and wisely when it knows that any member of the public has the
opportunity to view the records of government. In the judicial sphere, this goes to secret settlement
agreements that generally harm the public more than anyone else, particularly where a public body
is a party to the agreement. While some agreements between private parties should be confidential,
that is something that should be decided on a case-by-case basis and not given merely because one
or more parties asked the court for secrecy.
Applying this to court records, I agree with the notion that court records are not necessarily public
at creation, but only when they enter the "public record." This gives clerks, etc., some leeway in
severing particularly sensitive information. The parties to litigation are probably in the best position
to have a sense for what would be an invasion of privacy if made public, but, of course, litigants
should not be given carte blanche in deciding what should be excluded from the public record, but
should probably have to go through a process that could be challenged contemporaneously by public
interest (the press, etc) groups and could be challenged again at any time that public access might
be sought. This opportunity for parties to redact the record would have to be based on an objective
standard, such as the "offensive to a reasonable person" tort standard, or the long-ago "intimate
details" standard of the D.C. Circuit. It could not be based on subjectively perceived embarrassment
to the parties. Further, the court should have the ability to reject the redactions based on its analysis
of the public interest in disclosure and wherever the court has actually relied on personal information
in making its decision, that information must be public as well. Again, provision should be made
for outside parties representing the public interest in disclosure to argue that the information should
be made part of the public record.
I think there are a number of instances in which financial or sexual information included in litigation
should be made public. Such instances might be where a public official involved in a divorce case
has provided financial information that is at odds with other financial information he provided on
a financial disclosure form filled out as part of his public duties, or other kinds of behaviors that
indicate some abuse of the individual's public office.
I am heartened by what I see as the measured and thoughtful approach the federal courts are currently
taking on this issue. At the time your request for comments was published, the Maryland state courts
came up with a quick access/privacy policy that was horrid and reflected little thought on its part as
to how such a policy would affect public access. The final goal is to maximize the amount of
information that can responsibly be made public. Public oversight of the courts is essential in our
democracy and should not be given short shrift for personal privacy considerations. Electronic
filings and access to electronic court records should be seen as an opportunity to make the court
system more open, not less so.
No. 168
1/21/01
Kirk T. Hartley
Butler Rubin Saltarelli & Boyd
Chicago, IL
I submit these comments based on 17 years of practice in commercial litigation in Chicago, and
about 5 years of personal injury litigation. I also clerked for a year. I also am interested in electronic
legal publishing, but am not in the business and do not represent any clients in that area. These views
are purely my own. I believe the courts should encourage more legal publishing to reduce the costs.
The rates paid to WESTLAW and Lexis for opinions are exorbitant. Rivals (LOIS, Versuslaw, etc)
do exist today at lower rates, but their coverage is less comprehensive because, in part, of the cost
of collecting opinions. One primary missing part of their collections is federal district court opinions.
I suggest that the per page charges for downloading should NOT apply to opinions, and that PACER
should be designed to facilitate distributing opinions as easily and widely as possible. The courts also
should work as much as possible with companies like Casestream, Juritas, etc to facilitate access to
court files. During 17 years of commercial litigation for public and private companies, I have seen
very few cases in which truly private information actually made its way into court files. When
information actually is truly sensitive, judges can and do seal the information. Therefore, except for
bankruptcy cases, I urge that the policy presume free access to the full court file unless specific data
is ordered sealed.
I am not a bankruptcy lawyer so I do not know the real extent of the information filed in those cases.
My main point on this topic is that bankruptcy concerns should NOT inhibit access to other court
files. For what its worth, my sense is that commentators rightly fear that credit card listings, account
listings, etc will be wrongly retrieved and used. I leave the best solution to those more expert than
me. Finally, I urge the courts to very soon (e.g. next year) require digital filing of all pleadings,
briefs, etc. The only room I see for debate is whether lawyers should be forced to create and file
images of all exhibits to pleadings, briefs, etc. Even there I see little room for real debate. Scanners
are cheap ($250. buys a very nice scanner with a multiple page feeder; 1 page at a time scanners are
$100. or less), and are easy to use. Thank you for your efforts and consideration.
No. 169
1/02/01
Rep. Jeff Hatch-Miller
Arizona House of Representatives
Phoenix, AZ
Your document outlines some of the key issues related to digital government records and privacy.
We are quickly transforming to a computer-based system for the submission, storage and retrieval
of all government documents. At this point in time, few controls over publication of information
exist. We must affirm the basic public right to expect that, except in specific circumstances (e.g.
criminal conviction, holder of public office, etc.), doing business with the government does not
require a citizen to become a public personality. In other words, citizens have the right to expect that
information about themselves, gathered by the government in the course of conducting legitimate
business, will be held confidential. This is particularly true in regard to date of birth, social security
number, driver's license number, current residential address, e-mail address, telephone number, fax
number, tax returns, wage stubs, bank statements, account numbers, medical diagnosis, and other
information of this type. Aggregate information such as tax returns, wage stubs, bank statements,
medical evaluation and treatment records should likewise be protected from public display. The type
of record should be irrelevant. These fields, if contained in a government record, should be protected.
The level of protection should not change by record type. Given digital input, it is rather easy to
require that these information elements be entered as individual "data fields" within an electronic
record. These fields can then be encrypted and otherwise protected from display or retrieval. Except
for court purposes, records of individuals should be searchable only individually (with sensitive
fields encrypted), not in bulk. Searchability should be limited by subscription (with or without a fee).
The identify of the searcher should be verified prior to system entry and data download. I
realize that several organizations (such as newspapers and those that provide credit checks) are
vocally opposed to any protection of personal information. They wish for citizens to become public
personalities based only on the fact they did business with their government. However, many of the
opponent's needs can be addressed by subscription and by limiting downloadable information to
incomplete data fields (e.g. age range rather than birth date, first five digits of the social security
number rather than all nine, zip code address rather than street address, etc.) Through use of these
generalized data fields, distinction can be made between individuals without privacy being
compromised. The questions you are addressing are significant and may lay the foundation for either
a continuation of personal privacy of which the founders of our nation dreamed or else the "big
brother" envisioned by Orwell. Best wishes for your success in reaching a just conclusion.
No. 170
1/22/01
Greenfield, WI
To whom it concerns: I Mary Jo Trepczyk am very much against the Courts giving out information
on the Web such as Social Security Number and Medical Information to anybody. It can get into the
wrong hands!
No. 171
1/22/01
Jeannine M. Prager
Waukesha, WI
Inasmuch as putting material on the Internet is similar to broadcasting it (to receive it one simply has
to "tune" into it), I feel great care must be taken to protect sensitive information.
I favor the alternative of excluding public access to all, or most, sensitive information from all paper
and electronic case files.
Also, unless Social Security, medical and other sensitive information is pertinent to a case, it should
not be a required part of it.
Also, any information which could jeopardize the safety of someone, should not be released to the
public. Discretion should be used.
There also should be procedures whereby access can be shut down by court order.
Electronic filing systems, yes. Everything on the Internet, N0.
No. 172
1/22/01
Joseph S. Pomykala
Department of Economics
Towson State University
Towson, MD
I will only comment with regard to proposed Policy Alternatives on Electronic Public
Access to Federal Court Case Files with respect to Bankruptcy Case Files which may be
may be recommended to the Judicial Conference for its consideration.
My comments below follow each section of the proposed policy alternatives for
bankruptcy cases.
Bankruptcy Case Files
1.Seek an amendment to section 107 of the Bankruptcy Code. Section 107 currently requires public
access to all material filed with bankruptcy courts and gives judges limited sealing authority.
Recognized issues in this area would be addressed by amending this provision as follows: 1)
specifying that only "parties in interest" may obtain access to certain types of information; and (2)
enhancing the 107(b) sealing provisions to clarify that judges may provide protection from
disclosures based upon privacy and security concerns.
Comment: U.S.C. 11, Sec. 107., Public access to papers, should not be weakened by restricting
such to "parties of interest." All case documents should be open for public inspection,
electronically or otherwise; except if sealed under 107(b) with an exclusion whereas "parties in
interest" may obtain access to all sealed information in a case. Recommended amendment to Section
107(b) allowing wider judicial authority to seal certain information upon security concerns is
warranted - for example not to publicly disclose credit card, Social Security, and bank account
numbers. However, Judges should only be given narrow authority and discretion to seal documents
and such should be "either upon the request of the debtor, a party of interest in the case, or U.S.
Trustee."
2.Require less information on petitions or schedules and statements filed in bankruptcy cases.
Comment: Proposal 2 is unjustified. More information should be required on petitions and
schedules, pro se debtors should have their bankruptcy petitions rejected if such required
information is not provided, and information currently required should be made more detailed.
Bankruptcy data is lax and Congress has in recent bills tried to enhance the collective reporting of
bankruptcy information by federal agencies. Such information provided on official forms is needed
to that goal. This would also enhance public research. The total amount of debt discharged annually
is now just an estimate because of incomplete source data reported despite a demand by policy
makers for such information. The check off debt amount categories now used on bankruptcy
petitions should be replaced by actual dollar figures for debt type categories.
3.Restrict use of Social Security, credit card, and other account numbers to only the last
four digits to protect privacy and security interests.
Comment: Proposal 3 is clearly justified, and maybe the entire number should be stuck out of
publicly released records instead of merely restricting such to the last 4 digits. The Social Security
Act clearly restricts the usage of Social Security numbers.
4.Segregate certain sensitive information from the public file by collecting it on separate
forms that will be protected from unlimited public access and made available only to the
courts, the U.S. Trustee, and to parties in interest.
Comment: Proposal 4 is only an logistical step to make the release of segregated case information
less of a burden upon those who gather such. It may be unwarranted. The public should have
unlimited access to all court documents for inspection unless sealed. It may be unwise to create a
category of information withheld from the public which then may be augmented in the future by
those other than Congress and not directly by legislation.
In General: All case file documents, unless sealed by judicial authority or by law, should be available
for public inspection with the exclusion of "Social Security, credit card, and other account numbers"
as proposed, and maybe augmented by the names of minors mention in case filings, for example
when the debtor requests in a proposed plan under chapter 13 money as necessary maintenance for
dependents before calculating disposable income. Such names of minors used in publicly released
documents may treated similarly as other narrowly defined private information. Narrow judicial
authority under section 107 to seal documents with regards to private information is warranted, but
should not be broad.
The drawing up of proposals concerning privacy and the electronic release of bankruptcy
court documents should also take into consideration proposed legislation. The Bankruptcy Reform
Act of 2001 will likely be very similar on the Bankruptcy Reform Act of 2000 which passed 106th
Congress and has a high likelihood of becoming law this year. Proposed means-testing under this
legislation to limit access to chapter 7 would require debtors to provide substantial information on
past income likely from prior tax returns in calculation hypothetical future income to limit eligibility
to chapter 7 or be grounds for dismissal under substantial abuse provisions of section 707(b). Public
access to reported tax filing information may be restricted under other statutes. If copies of such
forms as I.R.S. 1040 forms are required by the courts in applying new provisions, and as evidence
of claimed information, then public access to such information should be limited only to information
as possibly required by statutory law and extracted from such, for example, adjusted gross income,
and not the entire tax document.
No. 173
1/23/01
Seattle, WA
I would like to offer my comments regarding the proposed Internet Access to Court Documents.
This amendment would surely affect the privacy and safety of individuals if access to court cases
were made easier through the Internet. Especially, in light of the potential abuses that may arise as
a result of the availability of online information such as domestic violence cases and bankruptcy
cases.
Access and information on individuals has become too easy and the ability to search the databases
with ease and anonymity could be harmful. Court files are available as public record, but they do
not pose the same degree of risk for participants in the court system. There is no need to make
access to banking records and personal information such as medical records, social security numbers
and tax returns readily available.
Court Records
Privacy implication in domestic abuse cases may contain information that may be sensitive such as
facts that may harm the victims. The information in the records is social security numbers, driver's
license numbers, address, telephone numbers and financial information. Other required disclosures
may include medical information, including medical history and disabilities, work history and a
personal history that may include names and ages of children, their social security numbers and birth
dates.
Improper Commercial Uses by Insurers, Employers, Credit Bureaus and Companies Engaged in
Target Marketing and Profiling.
Personal information that is contained in the court files can be easily searched and compiled to match
information that may be needed by credit bureaus. Employers against employees may use
information such as bank records, medical history and bankruptcy information. The commercial use
of profiling information for marketing purposes and for resale is increasing. I am afraid that the
availability of information that can be obtained by insurers, employers, credit reference bureaus, and
commercial entities in the resale of such information would facilitate the uses of the personal
information that is contained in court files in a discriminatory manner.
Access to the Courts Should Not Subject Participants to Increased Danger or Embarrassment.
Consideration should be given concerning the ease in which online information can be searched,
compiled, and disseminated over the Internet and reconsideration of how easily accessible "public"
information should be. Court records are already a matter of public record, having them on the
Internet cuts between the balance of public access to court records and respect for an individual's
dignity, personal privacy, and personal safety.
I respectfully request that the Judiciary reconsider the Proposed Amendment regarding the Internet
Access to Court Documents.
Thank you for the opportunity to comment on this proposed rule, if a public hearing is held I will
not be available to participate in the public hearing.
No. 174
1/23/01
Sir, the only thing here is lawyers don't want the public to know
anything with out paying them First. Just to fill out a form for a nickel is claimed to be practicing
law with a license. Has nothing to do with too much public information. They think the courts in
any form is their private playhouse. This is nothing more than a turf war, they think they are better
than a plain citizen .
No. 175
1/23/01
Grass Valley, IA
My concern is the content of the published items. Full electronic disclosure will create an assembly
of documentation that contains detailed information about criminal or personal activity.
Court rooms would be publishing the contents of a drug dealers "cookbook", bombers "guide to
destruction", or pictures of a spouse "in the act" of infidelity. These results, although not
intentional could VERY VERY VERY easily occur, intentionally or unintentionally.
This information is dangerous in the hands of the wrong people. Also, the effect of this would
immediately make these web sites unacceptable according to numerous social / ethical groups.
Current legislation is calling for schools and public entities to filter such content. It is easy to draw
examples of what may very well happen. The court room publishes, a public university / library /
school filters it.
Review the information already published by the federal courts and you will find how drug dealers
are operating and the mistakes they made to get caught. WE DON'T WANT TO CREATE A
MANUAL ON WHAT NOT TO DO IF YOU ARE A CRIMINAL OR HOW TO SETUP YOUR
OWN ILLEGAL BUSINESS.
No. 176
1/23/01
An American
"The credit belongs to the person who is actually in the arena, whose face is marred by the dust and
sweat and blood; who strives valiantly; who errs, and comes short again and again, because there is
no effort without error and shortcoming; but who does actually strive to do the deeds; who knows
the great enthusiasms, the great devotions; who spends himself or herself in a worthy cause; who at
the best knows in the end the triumph of high achievement, and who at the worst, if he or she fails,
at least fails while daring greatly, so that his or her place shall never be with those cold and timid
souls who know neither victory nor defeat." Teddy Roosevelt. Part of being an American is our right
to individuality. Even if that means making a mistake and starting a new life. This is the decision I
made as a young man when my life went in a direction I had not planned due to a career loss. I was
unprepared emotionally as well as financially. Thoughts of suicide or of leaving the country crossed
my mind. Instead, I filed for bankruptcy and started my life over. I am not proud of what I had to do,
but now, years later, I look back and see how far I have come. I did what I had to.
Of course, there are people who will never understand how bad things were. This is a terrible secret
I carry with me. At the time, I reasoned that perhaps I would get lucky and no one would ever make
their way to discover what I had done. I now realize this is not the case. While I know there are other
ways that people obtain this information--credit bureaus, information brokers, etc.--I didn't expect
it to be so easy for people to take this one, painful moment in my life and to offer it to the world.
Today, everyday, I now wake up wondering who will be the first person to discover this? My
partners? My soon -to-be wife? No matter what, I will deal with this challenge when presented with
it. I will try my best to explain my actions. What happens to me is irrelevant. But what does matter
is this: I do not believe that founders of our country could see this change in technology,
but if they had, I am sure they would have agreed with me in raising their pens against this intrusive
invasion of privacy. Who knows, perhaps they would have issued an anonymous pamphlet on
privacy?
No. 177
1/23/01
Charlotte, NC
It has been my observation that the quality of behavior and the degree of excellence in performance
is always improved when actions are subject to observation.
This is true of children, employees, spouses....even little puppy dogs. What would happen if children
were left unattended, if employees were not monitored or measured in some way....
There is nothing to insure the behavior and performance of the courts nor of attorneys. As one
attorney once told a client, "He would do what he wanted to do, because, he could."
For anyone who has had close experience with those involved with the court system, there is always
a long line of stories of misbehavior or reckless performance by officers of the courts. . . .
How much of what is decided within the court rooms of this country is the result of the activities of
the unfit or unrighteous? The public needs to know and to know we need access to the proceedings
to see.
How many cases are won from intimidation of the weak by the strong.
I believe that not only should all court proceedings be published on the internet but I also believe that
all legal documents should include the names of any and all attorneys who were involved in the
creation, review or approval of such documents.
No agreement, settlement or judgement should exclude the names of any of the attorneys who were
used to represent either side in the proceedings.
I believe that if this kind of information were to be available to the public, there would be far fewer
cases. As the system exists now, there is very little motivation for the courts nor attorneys to resolve
problems.
As long as problems can be perpetuated, the money clock just keeps ticking on, often times this is
the very weapon used by the affluent against the less affluent.
I believe that Americans are basically a compassionate people, an intelligent people
and a just people. If we, the public, were allowed to see the inner workings of the courts, I believe
that justice would be served and injustice would not be tolerated.
With the ever increase of ease of surveillance technology, there must be a means of monitoring the
decisions of the courts to insure that logic and good principles are applied. It is too easy to slide
coercion and abuse through the system as long as it is held behind a black curtain of secrecy.
No. 178
1/24/01
Sandown, NH
Absolutely Not! No, I do not feel that court documents should be public information on the internet
and accessible to all who can type a few key strokes to access them. Currently I perceive this to be
a public nuisance, as the information will undoubtedly, be used, interpreted, and misappropriated by
those not skilled enough to know when it is serving the public's interest or doing damage far beyond
anyone's comprehension or control to correct its misuse. Because those that define, interpret,
understand the laws of the land are highly educated, for the most part, and have a moral, legal, and
ethical obligation, responsibility, and legal professional license to do so, it should be left in their
hands to explain a documents message context. I as a common citizen, with a B.S. in Business
Management, B.A. in Criminal Justice, and am currently working on attaining a certificate in
paralegal with the prospects of going on to Law School do not encourage this action, nor do I feel
this action would be in the best interest of the public because of the potential harm it may induce by
those not competent to understand the ramifications of this action, be it civil, criminal, or federal in
nature. Let this if anything be in the realm of National Security, the right to enjoy a peaceful
coexistence with thy neighbor. Airing our individual 'dirty laundry' to the world of 'backyard
scholars' is not advisable, nor prudent, and certainly not in the best interest any one particular entity.
Thank You
No. 179
1/24/01
Brian Long
President, Dolan Media Co.
on behalf of
Beth Climo and John Byrne
American Bankers Association
Washington, DC
The American Bankers Association (ABA) is pleased to submit this response to the request from the
federal judiciary for comments on the privacy and security implications of providing electronic
public access to court case files. According to the request, the "Judicial Conference of the United
States is studying these issues in order to provide policy guidance to the federal courts." The ABA
brings together all categories of banking institutions to best represent the interests of this rapidly
changing industry. Its membership — which includes community, regional and money center banks
and holding companies, as well as savings associations, trust companies and savings banks — makes
ABA the largest banking trade association in the country.
As a general matter, the ABA is strongly committed to open access to public court documents,
whether in electronic or paper form. At the same time, we recognize the need to balance privacy
concerns but the ease by which public information is available should have no bearing on who has
access. Any privacy concerns in this area can be addressed by requiring registration with the courts
prior to accessing information as well as prosecuting to the full extent of the law those that commit
crimes with personal information.
Executive Summary
The ability of new information technology to make court data that already is public more readily and
easily available is a dramatic improvement to the current system and any changes to accessibility
should only occur after careful consideration.
Financial institutions need access to public records to protect their institutions against fraud and to
be able to extend credit and offer financial products to their customers.
Personal financial information is sufficiently protected by court procedures and existing law since
the courts, upon request, may seal documents from public view.
Through a combination of education by the government and by the private sector, individuals can
have sufficient information on how to protect personal information from abuse.
Limiting electronic access to those who register with the courts will help ensure legitimate use of
the electronic case files. Existing federal law (18 USC 1028) already criminalizes fraud committed
through the use of personal information.
Areas of Concern for the Federal Judiciary
In this request for public comment, the Judicial Conference of the United States is seeking a response
on several related issues:
The judiciary's plans to provide electronic access to case files through the Internet;
The privacy and security implications of public access to electronic case files; and
Potential policy alternatives and appropriate scope of judicial branch action in this area.
We will address each of these issues below.
Electronic Public Access to Federal Court Case Files
As the paper indicates, the movement to electronic access to case files means that the public will be
able to gain access to court documents that "will no longer depend on physical presence in the
courthouse where a file is maintained." The court points out that case files "may be viewed, printed,
or downloaded by anyone, at any time, through the Internet." It should be noted, however, that the
court plans to provide public access through their "PACER" web-based password-protected system,
which requires a user to open an account with the court. ABA supports the continued open access
of court records and this requirement related to PACER, we believe, will give the courts some ability
to protect against potential abuse of information.
Potential Privacy and Security Implications of Electronic Case Files
The judiciary recognizes the "significant benefits" of electronic case files, and the long tradition of
open access to public court records. The financial services industry relies heavily on public records
to, in part, authenticate identities and to determine the viability of potential customers as acceptable
credit risks. The courts do, however, raise the legitimate concerns about how unlimited internet
access could have personal privacy implications --- specifically, the ease of access to court
documents that may include "personal and sensitive information" of litigants and third parties such
as those found in bankruptcy filings and both civil and criminal files. A solution to that concern
mentioned in the Judicial Conference paper, however, is the fact that some portions of a case file,
if not all, may be sealed by court order. ABA believes that this is a strong tool to prevent privacy
abuses and eliminates the need for additional restrictions.
It should also be noted that the Office of Management and Budget, the Department of Justice and
the Department of Treasury have just released a study of bankruptcy filings as potential areas for
privacy concerns. ABA filed a comment letter on that issue (copy attached) and we stated in part
that:
the financial privacy expectations of individuals filing for bankruptcy must, as a realistic matter, be
far less than for individuals who do not use the system. This is due to the inherent nature of the
process, which utilizes the intervention of a branch of the public sector, the judiciary, to block
pending legal actions as well as to extinguish or substantially modify contracts entered into in
exchange for credit. In addition to being part of the very nature of an open judicial process, it is
desirable that the fact that an individual has filed for bankruptcy protection be disseminated as
widely as possible, so that business and individual creditors of the bankrupt can avail themselves of
available rights and remedies, and so that others who may be approached by the bankrupt for new
credit may protect themselves.
The study, released on January 19, found that "access by creditors to detailed financial information
is essential for the efficient operation of the bankruptcy system…" It also noted that "[c]reditors and
other parties in interest in bankruptcies should continue to have access to detailed information about
individual bankruptcies in order to pursue their legitimate claims as efficiently as possible."
Policy Alternatives on Electronic Public Access
In this request for comments, the Judicial Conference offers several policy alternatives to the current
system. Under the "civil case files", there is a recommendation that it is the responsibility of counsel
and pro se litigants to protect their interest through motions to seal specific documents. ABA prefers
this method of reliance on the individual party and the judge to decide how information should be
protected. We would also recommend, however, that the courts explain the potential for information
abuse to each litigant so that they may make informed decisions regarding their information. As the
Cate and Varn paper concludes:
An informed citizenry is essential to the balancing process for both the individual choices they may
make and in understanding the costs, risks, and benefits of privacy and access solutions.
Government---assisted by industry, not –for-profit organizations, and the academic
community----has a duty to educate the public about privacy and access issues. The more
policymakers and the citizenry know about this issue, the more accurate and satisfying the balancing
process will become.
ABA would also like to emphasize that current law already penalizes those that abuse personal
identifying information to commit fraud. 18 USC 1028 criminalizes "identity theft" and thus
provides sufficient protection to those that use court data to commit fraud. We have attached the
statute to this paper for your information.
The second option is to define what documents should be in the "public file" and what should be
shielded from pubic view. This option would be extremely difficult to follow without a detailed and
lengthy debate on what information presents a potential for continuous privacy abuse. The third
option, to establish "levels of access" to certain electronic case file information, appears to be too
cumbersome, and probably unnecessarily costly.
As far as the options for criminal case files, ABA still maintains that there should be no distinction
between on-site access and electronic access of public documents. There is still judicial oversight
to whether a file should be sealed and that provides sufficient protection for any privacy and security
concerns. Finally, the recently released paper on financial privacy in bankruptcy confirms the need
to continued access to the financial services industry for bankruptcy case files.
Conclusion
ABA strongly believes in the need for access to public records. Current law and processes more than
adequately protect the privacy of sensitive information. The courts should continue to provide access
to case files, whether in electronic or paper form, with only the limitations coming from individuals
that petition the courts to seal the documents as necessary.
Thank you for the opportunity to comment on this important matter.
Appendix
Sec. 1028. Fraud and related activity in connection with identification documents and information
(a) Whoever, in a circumstance described in subsection (c) of this section -
(1) knowingly and without lawful authority produces an identification document or a false
identification document;
(2) knowingly transfers an identification document or a false identification document knowing that
such document was stolen or produced without lawful authority;
(3) knowingly possesses with intent to use unlawfully or transfer unlawfully five or more
identification documents (other than those issued lawfully for the use of the possessor) or false
identifi cation documents;
(4) knowingly possesses an identification document (other than one issued lawfully for the use of
the possessor) or a false identification document, with the intent such document be used to
defraud the United States;
(5) knowingly produces, transfers, or possesses a document-making implement with the intent such
document-making implement will be used in the production of a false identification document or
another document-making implement which will be so used;
(6) knowingly possesses an identification document that is or appears to be an identification
document of the United States which is stolen or produced without lawful authority knowing that
such document was stolen or produced without such authority; or
(7) knowingly transfers or uses, without lawful authority, a means of identification of another person
with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of
Federal law, or that constitutes a felony under any applicable State or local law; shall be punished
as provided in subsection (b) of this section.
(b) The punishment for an offense under subsection (a) of this section is - (1) except as provided in
paragraphs (3) and (4), a fine under this title or imprisonment for not more than 15 years, or both,
if the offense is - (A) the production or transfer of an identification document or false identification
document that is or appears to be - (i) an identification document issued by or under the
authority of the United States; or (ii) a birth certificate, or a driver's license or personal
identification card; (B) the production or transfer of more than five identification documents or false
identification documents; (C) an offense under paragraph (5) of such subsection; or (D) an offense
under paragraph (7) of such subsection that involves the transfer or use of 1 or more means of
identification if, as a result of the offense, any individual committing the offense obtains anything
of value aggregating 1,000 or more during any 1-year period; (2) except as provided in paragraphs
(3) and (4), a fine under this title or imprisonment for not more than three years, or both, if the
offense is - (A) any other production, transfer, or use of a means of identification, an identification
document, or a false identification document; or (B) an offense under paragraph (3) or (7) of such
subsection; (3) a fine under this title or imprisonment for not more than 20 years, or both, if the
offense is committed - (A) to facilitate a drug trafficking crime (as defined in section 929(a)(2));
(B) in connection with a crime of violence (as defined in section 924(c)(3)); or (C) after a prior
conviction under this section becomes final; (4) a fine under this title or imprisonment for not more
than 25 years, or both, if the offense is committed to facilitate an act of international terrorism (as
defined in section 2331(1) of this title); (5) in the case of any offense under subsection (a), forfeiture
to the United States of any personal property used or intended to be used to commit the offense; and
(6) a fine under this title or imprisonment for not more than one year, or both, in any other case.
(c) The circumstance referred to in subsection (a) of this section is that - (1) the identification
document or false identification document is or appears to be issued by or under the authority of
the United States or the document-making implement is designed or suited for making such an
identification document or false identification document; (2) the offense is an offense under
subsection (a)(4) of this section; or (3) either - (A) the production, transfer, possession, or use
prohibited by this section is in or affects interstate or foreign commerce; or (B) the means of
identification, identification document, false identification document, or document-making
implement is transported in the mail in the course of the production, transfer, possession, or use
prohibited by this section. (d) In this section - (1) the term ''document-making implement'' means any
implement, impression, electronic device, or computer hardware or software, that is specifically
configured or primarily used for making an identification document, a false identification document,
or another document-making implement; (2) the term ''identification document'' means a document
made or issued by or under the authority of the United States Government, a State, political
subdivision of a State, a foreign government, political subdivision of a foreign government, an
international governmental or an international quasi-governmental organization which, when
completed with information concerning a particular individual, is of a type intended or commonly
accepted for the purpose of identification of individuals; (3) the term ''means of identification'' means
any name or number that may be used, alone or in conjunction with any other information, to identify
a specific individual, including any - (A) name, social security number, date of birth, official
State or government issued driver's license or identification number, alien registration number,
government passport number, employer or taxpayer identification number; (B) unique biometric
data, such as fingerprint, voice print, retina or iris image, or other unique physical representation;
(C) unique electronic identification number, address, or routing code; or (D) telecommunication
identifying information or access device (as defined in section 1029(e)); (4) the term ''personal
identification card'' means an identification document issued by a State or local government
solely f or the purpose of identification; (5) the term ''produce'' includes alter, authenticate, or
assemble; and (6) the term ''State'' includes any State of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, and any other commonwealth, possession, or territory of the
United States. (e) This section does not prohibit any lawfully authorized investigative, protective,
or intelligence activity of a law enforcement agency of the United States, a State, or a political
subdivision of a State, or of an intelligence agency of the United States, or any activity authorized
under chapter 224 of this title. (f) Attempt and Conspiracy. - Any person who attempts or conspires
to commit any offense under this section shall be subject to the same penalties as those prescribed
for the offense, the commission of which was the object of the attempt or conspiracy. (g) Forfeiture
Procedures. - The forfeiture of property under this section, including any seizure and disposition of
the property and any related judicial or administrative proceeding, shall be governed by the
provisions of section 413 (other than subsection (d) of that section) of the Comprehensive Drug
Abuse Prevention and Control Act of 1970 (21 U.S.C. 853). (h) Rule of Construction. - For purpose
of subsection (a)(7), a single identification document or false identification document that contains
1 or more means of identification shall be construed to be 1 means of identification.
No. 180
1/24/01
Lemont, IL
I do not believe these records should be on the internet. You have listed full names, addresses, social
security numbers and signatures on the internet so that this information is accessible to anyone!
Do you realize the implications and the precarious position you have put everyone in that has filed
for bankruptcy?
Anyone has access to each individuals most important and what should be private information plus
their signature!
This information should stay in the courthouse on paper to protect the individual's privacy and
protect them from fraudulent use of this information.
Anyone can assume these individuals identity via the listed social security numbers and signatures.
I am disturbed by this world wide web use of each individual's private information and signature!
No. 181
1/24/01
Mark Bernsley, Esq.
Encino, CA
As a preliminary matter, I commend and thank the staff on the Office of Judges Programs of the
Administrative Office of the United States Courts for their paper entitled "Privacy and Access to
Electronic Case Files in the Federal Courts," which provides an excellent explanation of the issue
presented and a common foundation and context for comment.
The Request for Comment (the "Request") addresses the privacy and security implications of
providing electronic public access to court case files. It is apparent that the current technological
opportunities to provide wide public access to court files has focused attention on the privacy
concerns of that public access, and suggested that the historical ad hoc judicial approach to
addressing privacy concerns may no longer be adequate.
This paper provides the author's analysis and suggests an outline of one possible approach to the
issue. First I argue that the balance of public access and personal privacy be based on the respective
purposes of the two competing concerns, and that exclusions from public access be based on specific
details and not the documents containing them. Next, I argue that there be two levels of access (full
versus restricted) and that they be based on the involvement of the person rather than the medium
of the file. Finally, I propose an outline of a practical approach for implementing the conclusions
that I reach.
The Balance of Public Access Should be Based on Details, not Documents. All Documents Should
be Available- But Not all Details.
As the Request and the Staff Paper point out, the Courts have long recognized a common law right
of public access, and that such right is not absolute. From this, many, including courts, have
presumed that full and complete public access to all information in the courts' files is the appropriate
starting point; and litigants have often faced a tough burden to have "private" information sealed or
otherwise protected from actual or potential public scrutiny. The law does not require such a starting
point, however, and I would ask the reader to suspend any such predisposition for the purpose of this
discussion. and accept as a starting point neither that "court documents ought be public unless…"
nor that they "ought be private unless…".
I suggest, as a starting point, a review of the purposes we seek to fulfill, to wit, providing
"appropriate" public access while providing "appropriate" protections and safeguards of privacy.
Obviously, critical to the foregoing balance is determining what is "appropriate" for each concern
and, as a general matter, this can be gleaned from the purpose each policy was adopted to promote.
I assume that the purpose of protecting privacy is either intuitively or readily apparent, or adequately
addressed elsewhere, so as not to require extensive discussion here. For purposes of the present
discussion, however, let me suggest that the purpose of protecting privacy in the present context is
to prevent the use of information, properly presented to the court in connection with the resolution
of a matter, for some other purpose. See, e.g., Hill v. National Collegiate Athletic Assn., 7 Cal. 4th
1, 17 (1994).
The purposes and importance of public access (the "Access Purposes"), as outlined in the Staff
Paper, are: (a) monitoring the function of courts, thereby insuring quality, honesty and respect for
our legal system, and (b) encouraging proper political public discourse concerning the administration
of justice. What stands out in the foregoing is that the purpose of public access focuses on oversight
of the courts and the judicial process, and not on any right the public has with respect to the
individual litigants.
If we accept the foregoing purposes as the goals of privacy protection and public access, respectively,
we can create a general outline of the information that the public would likely need to fulfill the
Access Purposes and, depending on the nature of any particular case, can assume that further details
probably do not require public access and can remain private without compromising fulfillment of
the Access Purpose. As an example, it may be concluded that, as a general matter, the public would
require access to the following information to promote the Access Purpose:
Who litigants are (to ensure that justice is evenly and fairly distributed);
What issues are presented;
What procedure(s) is/are used by the court to resolve the dispute;
The type, quality and quantity of evidence presented;
The factual and legal arguments presented; and
The rulings, decisions and orders entered by the court.
In most cases, public access to certain details is probably not necessary to the Access Purpose.
Those details would likely include: addresses, telephone numbers, non-public personal identifying
information (such as social security numbers), property identifying numbers (bank account numbers,
serial numbers), financial details such as income, assets and liabilities, details of trade secrets and
other non-public business data, details concerning the nature and extent of personal and sexual
relationships and with whom such have been conducted, personal physical characteristics (scars,
moles, birthmarks, etc.) and similar personal and familial details. The type of case, e.g., bankruptcy,
criminal, tax, may well affect the types of information necessary for public review and may result
in a slightly different list; however, the approach outlined will likely produce a legitimate starting
point for finding balance.
If and to the extent that the Access Purpose is defined differently than it is above, the conclusions
as to what information ought be public versus private might well be different, but the analytical
process need not be any different.
It is also apparent that the competing principles could not be balanced in advance based on document
categories. Thus, any attempt to differentiate public versus "sealed" documents in advance, based
on document type, will likely fail. Further, such an attempt would invite mischief, by permitting
unscrupulous litigants to "plant" sensitive information of an opponent into a "public category"
document, as a means of leverage, frustration, etc. Thus, it would be futile and unwise to attempt to
define public access based on document type. It would be workable, however, to exclude public
access to "private details" in any document.
Finally, I suggest that it is unnecessary and inimical to privacy, to create a policy which attempts to
restrict the scope of "private" information before anyone without access to such details, wants them.
Thus, as a matter of policy, while the courts' files ought remain publicly accessible, details contained
in documents ought easily be "privatized" by the litigants, unless and until someone outside the
litigation has made a clear showing that, with respect to such detail, an Access Purpose outweighs
the privacy interest protected.
There Should be Two Levels of Access, Based on Involvement, Not on Medium.
The previous section addressed the reasons why certain details (rather than certain documents) ought
not be publicly accessible. Clearly, however, the court and the litigants require access to this
information, so a two-level access system would be necessary.
As set forth in the Request, some have suggested that the level of access be based on the medium-
with full access being available via physical file, and limited access be available electronically. I
reject this approach. As acknowledged in the staff paper, some litigants, courts and advocates have
relied on a "practical obscurity" of court documents a source of privacy protection; and this "practical
obscurity" is seen as threatened by the broader access which electronic availability promises. It is
apparent that the medium-based dichotomy relies on the validity of "practical obscurity."
Initially, I question whether "practical obscurity" is really the result of the inconvenience of access,
as is subsumed in the arguments of proponents of a media-based dichotomy, or whether "practical
obscurity" has historically been the result of a general lack of interest in most litigation files. The
rich, the famous, and those involved in litigating matters of broad public interest over the years have
likely not found the purported "practical obscurity" of their cases much of either. I suggest that most
people have kept their disputes private more because they have generally been boring and because
others haven't cared, than because court files have been inconvenient to access. Coincident with
technological developments has been the increased competition among news and entertainment
media for public attention, and the resulting increased efforts to find or create news and drama from
ordinary life-- witness the plethora of reality-based and dispute-based television shows. The judicial
process and its participants have obviously been a source of content for this competition. Thus,
review of court files by non-participants in court cases has risen significantly without regard to the
medium in which the files are kept or the technology with which they are accessed. It appears that
many non-participants most interested in court files have the financial ability to engage agents or
employees to physically review files, leaving little left of the "practical obscurity" theory.
"Practical obscurity" does not logically support a medium-based access dichotomy, because it is easy
for anyone to widely disseminate information electronically. As mentioned, physical files have been
"practically obscure" only to those lacking both the resources to hire someone else to review files,
and the time to review court files themselves. Technology would allow those with practical access
(via physical inspection) to easily re-publish the information electronically (either for free or for a
fee)- so an effort to retain a "practical obscurity" based on medium, will ultimately fail wherever
there is demand for the details.
Thus, electronic and paper files need to be subject to coherent and consistent principles and
procedures regarding privacy and public access and one should assume that, absent other protections,
access by one could effectively result in access by all.
As discussed in the previous section, whether one has access to full or limited information should
be a function of one's involvement with the case. The court, the parties and parties' counsel, should
have full access; the public's access should exclude those "private" details not necessary to promote
the Access Purposes. Those with full access should be prohibited from disclosing information
concerning any other participant.
Initial Guiding Templates are Available for Developing Implementing Processes and Procedures.
Creating procedures to protect privacy on a day-to-day basis in the midst of an otherwise public
enterprise is something the courts have little experience with to date; but other Federal agencies have
had significant experience dealing with the issue.
The following procedural suggestions are based on the procedures used by the Internal Revenue
Service in reviewing requests for rulings, where the ruling may well be published, but the law
requires the protection of private information. See, e.g., Rev. Proc. 2000-1, 2000-1 I.R.B. 4. Simply
summarized, the IRS teaches a procedure whereby two versions of the same document exist: one of
which is complete, and the other of which has certain details redacted. The redacted version is or
becomes the public version.
From the conceptual starting point described, specific procedures can be defined to accomplish the
desired result. The following outline presents a sample of implementing details based on the
foregoing discussion.
General Principles
Certain information will not be public absent Court order, issued after balancing privacy concerns
with the reasons for public access. Non-public information concerning a case will be available to
the court (and its staff), the parties and their counsel in any and all forms and formats.
Documents may exist in two versions: complete and redacted. Where two versions exist, only the
redacted version will be public. There are a myriad of ways to redact document, and a standard
should be adopted. Two possible approaches are: (a) to block out "private" words and phrases,
leaving the document otherwise in tact; or (b) use shorthand phrases in the body of the document as
substitutes for actual detail, with the detail defined or contained in a supplement, which is not made
public.
Those having access to non-public information regarding another may not disclose the information
other than to the court or to parties otherwise having access. Criminal sanctions and civil liability
should attach to violations of this duty, and no privilege should prevent disclosure of the source of
non-public information by one not authorized to have the information. These provisions are essential
to maintaining the integrity and viability of the system.
Judges need the authority to modify general rules and procedures to suit the needs of any particular
case.
Document Filing Procedures, Redactions and the Timing of Public Access
Any party filing a document may file a "redacted copy" therewith, which removes or provides
substitutes for "private" information.
Any party being served with a document may submit a revised copy to redact or further redact
information.
No document will be made public until all parties have been served and have had an opportunity to
present redacted copies, as provided below. (It is unlikely that, before such time, there would be any
need for the type of judicial action warranting public access or review). One assumption here is that
at least one of the parties would have an interest in "looking out for" the privacy interest of any third
party whose "private" details might become the subject of a pleading or other court document.
The clerk can order the party submitting the original document to provide a copy (or revised copy)
including all redactions requested by any and all parties, which copy will be the public copy unless
and until further order of the court.
The court may, sua sponte or upon application of any interested person, with or without notice or a
hearing, order additional redactions to be made. The theory here is that all parties have access to all
information in the file. Party A would rarely have a legitimate interest in providing public access
to potentially sensitive information of Party B. Thus, if Party B wanted something redacted
concerning itself, the court could order it regardless of Party A's position on the matter. Any such
order would be subject to reversal or modification upon motion of any person to make information
public.
Certain guidelines and procedures could be set in place to obviate the need for judicial intervention
in the privacy concerns of most routine matters. For example, to further supplement the above
processes, the court could adopt a rule or issue a standing order that all documents be submitted
without certain specified information unless necessary, and where the information was necessary,
that the document be submitted with a redacted a copy omitting such information. Information
mandated to be redacted might include the following, for example:
Names (other than the parties);
Addresses of people;
Personal Identifying numbers (social security, drivers license, bank account, and similar numbers);
Certain financial details (for example, compensation, assets, liabilities, net worth, etc.
in most matters, but such information is probably necessarily disclosed in bankruptcy);
Identification of commercial processes and procedures which might constitute trade secrets.
The above procedures would supplement, rather than replace, the alternative of sealing documents,
although the above procedures would be preferred to the sealing of an entire document.
Coordination of Transcripts
It accomplishes little to protect information from public access in court files, if the information is
revealed by a witness, including a party, in open court during a hearing or trial with the public
looking on. To some extent, this may be unavoidable, and the disclosure of certain information may
be a considered a cost which a party must endure for the right to a court trial. There are alternatives
with respect to much information, however. For example, witnesses are routinely asked for their
names and addresses at the beginning of their testimony. If a procedure allowed such witnesses to
provide their addresses by written declaration, which would not be made public, the information
could be easily protected without interfering with the conduct of the trial. There are other details
which could be similarly treated.
Procedures for Making Redacted Information Public
Ultimately, there will be information which is withheld and to which the public, or someone desires
access, and some procedure must exist for a determination of whether the desire is legitimate, such
that the information be made public. On the other hand, it is in the court's interest to keep the
number of such challenges as low as possible, and to not be burdened with an endless sea of such
challenges.
Motions to make information public might be made by any person (or raised by the court) at any time
and granted if it is shown that serving the purposes of public access in the case outweighs the privacy
interests of those affected. The person whose information is the substance of the request would
necessarily be served and have the right to oppose such a motion (or waive objection). The age of
the case, the current accuracy of the information and the degree of public knowledge could be among
the factors considered. To restrict repeated motions seeking the same or similar information in the
case, public notice of such motion could be ordered published (in addition to required notice to those
whose information is sought), with the right of anyone to submit arguments on either side. The court
would have discretion to dispense with or limit oral argument. If public notice were given, and an
opportunity for anyone to join, only one motion would need be heard with respect to any
information, document or category of information or documents. This would avoid a continuous
source of motions. Further, if motions were brought during the course of a matter, the court could
defer hearings and decisions on any such motions to a time after the conclusion of a matter, to avoid
disruption of the courts primary concerns.
The above procedures are provided only as an example of how the concepts discussed might be
practically applied, and further consideration and detail is admittedly required for actual
implementation. The procedures do suggest, however, that the concepts discussed could be
practically implemented without an undue burden on the courts.
Conclusion
Public access to court files should be open, regardless of medium, to the extent it is necessary to
fulfill the purpose of that access, which is to monitor the functioning of courts and to encourage
proper political public discourse concerning the administration of justice. Details not essential to
that purpose ought be easily "privatized" by parties and others involved in the litigation process.
This suggests that exclusions to public access be based on details and not the documents containing
them. The court and the parties and their counsel should have full access to the entire file, while the
public should have access only to documents which have had "privatized" information redacted--
but in either case, the medium used (paper or electronic) should be irrelevant. Finally, procedures
used by Federal agencies such as the IRS have demonstrated the viability of a system in which both
complete and redacted versions of certain documents are maintained, with public access being
granted only to redacted versions of documents, and I recommend the adoption of this type of
system.
No. 182
1/25/01
The first and foremost concern for the courts is, and always should remain, the expedient carrying
out of justice. Will making these documents electronically accessible limit justice? Absolutely. In
the short term the effect might not be very noticeable, but as the mass of accessible data grows, ever
more companies move to exploit the information. This will possibly lead to victims being afraid to
confront their attacker because of the personal information that may need to be revealed; it may also
lead to witnesses and convicted offenders being much less willing to assist law enforcement officials.
Would this open access apply to minors? Are we to assume that the agencies that sift through the
data will relinquish what they have once a minor's records are sealed, or might that be the best to
profit by providing information no longer publicly available? The First Amendment
does not extend to all documents. Perhaps the best parallel here would be to compare court records
to medical records - the information contained in either could be potentially damaging to the
individual. Because of this it seems that serving the call of justice outweighs the concerns regarding
freedom of information, and perhaps a solution would be to seal court documents in the same manner
as medical documents. They should be accessible only to those who would be able to use them to
further the cause of justice.
No. 183
1/25/01
Craig Husa
Senior Vice President
Courtlink Corp.
CourtLink is the nation's leading provider of electronic public access to court records - an Internet
pathway to and from our nation's courts. CourtLink has been providing electronic public access to
court records since 1991. It currently provides access to over 1300 courts nationwide, including over
90% of the federal courts, and state courts in Washington, Oregon, New York, New Jersey, North
Carolina, California, Texas and Maryland, among others.
Between January 1999 and October 2000, CourtLink's customers, which include law firms,
corporations, financial institutions, government agencies and investigative firms, electronically
accessed court records over 1.2 million times. Our over 30,000 customers include the top 100 law
firms in the United States. We currently have electronic access agreements in place for state courts
that serve nearly 50% of the U.S. population. CourtLink's mission is to provide the public with
better access to the nation's courts, while complying with legitimate determinations as to what
information is public.
At the heart of establishing policy for public access to court records is the delicate balance between
the public's right to know of public adjudications and the rights of the involved individuals to keep
the public resolution of the dispute private.
OPEN ACCESS BETTER THAN RESTRICTED ACCESS
Generally the law and sound public policy favor a long-standing tradition of open trials. This right
is especially true when it is applied to criminal trials. The Supreme Court has stated, "A trial is a
public event. What transpires in a courtroom is public property". It is difficult to logically construct
an argument that would make the court records of that "public trial" unavailable to the public unless
there was a significant and compelling public policy need to do so. The public's right to court records
is therefore derivative of the "public trial" element of dispute resolution. As the public deals with
substantial issues concerning the public trust and confidence of the courts, it would be a step
backwards to curtail rather than advance the public's access to information concerning an otherwise
open public proceeding. Moreover, if the records are available only upon a personal visit to the
courthouse, the records are expensive and the public's access to courts is frustrated.
Open access to courts and information contained in court records should be distinguished from
"freedom of information" requests and government compilations of data such as criminal "rap
sheets". The Supreme Court's decision in the Reporters Committee case does not create a privacy
interest in the underlying court records of a criminal case. It only protects a privacy interest in a "rap
sheet" of an individual when the government is in control of a compilation of information from many
underlying sources some of which may have been otherwise public criminal prosecutions. This
distinguishing element is evidenced by the fact that the Federal Courts make criminal case records
available by electronic access through PACER and private information providers such as CourtLink.
PUBLIC'S LEGITIMATE NEED FOR COURT RECORDS
The public has many legitimate needs for court information. CourtLink customers include attorneys,
law enforcement, private investigators, insurance companies, title insurers, the media, financial
institutions, securities firms, tenant screening and employment screening companies which use the
service to find information critically important for their work.
In a recent survey of Public Attitudes Toward Uses of Criminal History Information it was
concluded that, " there is substantial public support for making certain types of justice records
available outside of the criminal justice system when there is a perceived rationale of public benefit
and/or safety."
In today's mobile society, it is common for citizens to move freely across county and state lines to
conduct their business and personal affairs. The regional, and often national, nature of such activity
highlights the need of individuals and businesses to have the ability to search the court records
throughout the country. One illustrative case is that of Shawn C. Lowrance, an adopted 10 year-old
child who drowned in October 1999. One of several articles published about this case in The News
Tribune of Tacoma, Washington, described the facts concerning the adoptive parents:
"As reported in The News Tribune, the couple had a troubled financial past, including two
bankruptcy filings and the loss of their Lacey home to forestall a foreclosure. Criminal investigators
became suspicious about [Shawn Lowrance]'s death when they learned the couple tried to collect a
$650,000 in life insurance they took out on Shawn within a year of his death.
An online search would have also turned another equally disturbing "red flag" - the 1993 arrest of
the adoptive mother on suspicion of assault against her husband, Shawn's adoptive father. The couple
didn't mention the incident while undergoing the adoption process. A Washington State Patrol
background check turned up nothing because, unlike the online service [CourtLink], the State Patrol
doesn't disseminate arrest records."
Had the adoption agency made an electronic search of court records prior to Shawn's adoption, it
might have made all the difference for him. In fact, in the 13 page report of an independent
investigation into the adoption, the six member panel recommended that the Washington Department
of Social and Health Services consider using CourtLink.
It is common for law enforcement agencies to have criminal record information about witnesses
while defense investigators and attorneys cannot obtain the same information unless they search each
court record. The same is true for parties in civil litigation who desire to determine if a witness has
a prior criminal record that would affect their credibility. The inability to find relevant information
frustrates the "search for truth" and, ultimately, a just result.
EFFICIENCY OF ACCESS
Underlying much of the discussion concerning the public's trust and confidence in courts are the
inefficiencies of the courts, which are directly related to a dependency on paper-based work
processes. It is also impossible for the many courts of any one region to make records available in
one central location. While the federal courts may present the opportunity for access to all federal
courts though one system, state courts have many different systems and multiple methods of access.
A member of the public is therefore required to make a physical trip to the courthouse for
information that is needed and available at the clerk's counter. Thus, there is a public need for
commercial enterprises to provide information from courts in multiple states or regions through one
system.
Clerks' offices, Judges' chambers, and other judicial offices are not adequately staffed to handle the
numerous requests for information; consequently the staff is frustrated from accomplishing its
mission of dispute resolution, and the public is frustrated by having to spend more time and money
to get the information needed to make legitimate business and personal decisions. Often citizens
make decisions " in the dark" because they do not have the time or resources to search numerous
court records. Facilitating and allowing responsible commercial enterprises such as CourtLink to
electronically access court records enhances the ability of the court to concentrate on its mission of
dispute resolution and allows the public to access needed information at a lower cost.
ALTERNATIVE METHODS OF PROTECTING PUBLIC POLICY INTERESTS
There are many significant public policy interests which need to be considered and protected. Some
are already protected by statute, and appropriate legislative bodies will consider more. Indeed, there
are some in our society who would misuse information contained in court records. The remedy to
protect the public, however, should not be to reduce access to public information when effective
alternative methods exist. For instance, laws that prohibit harmful activity, such as criminal record
profiling, and by punishing harmful conduct, can protect the public. Such was the approach of
Congress when it enacted the Fair Credit Reporting Act. In addition a subscription agreement to
access the records can be required to contain a provision against use of the information for prohibited
purposes.
SUMMARY
We urge the Judicial Conference of the United States to continue to support the broadest public
access to electronic case files. Limitations on access should be rare and only when required by a
compelling public interest. Only through assured and timely public disclosure of records of legal
events occurring in our courts can the public's confidence in the judicial system continue.
No. 184
1/25/01
Mercer Island, WA
Please keep website operational. Continued solicitation of comment in this rapidly developing area
is essential for (a) developing good policy; (b) enhancing public understanding and trust in the
process.
No. 185
1/25/01
Ethel Zelenske
National Organization of Social Security Claimants Representatives
Washington, DC
These comments are submitted on behalf of the National Organization of Social Security Claimants'
Representatives (NOSSCR). NOSSCR is an organization of attorneys and nonattorneys who
represent claimants for Social Security and Supplemental Security Income (SSI) benefits. The
current membership is approximately 3,450 representatives. Collectively, we have many years of
experience in representing individuals at every level of the administrative and judicial process.
NOSSCR is committed to providing the highest quality representation and advocacy on behalf of
individuals who seek Social Security and SSI benefits.
These comments are submitted in response to the request for public comment published at 65 Fed.
Reg. 67016 (Nov. 8, 2000). As described below, we recommend adoption of a policy similar to
Policy Alternative number 3 for Social Security and SSI district court and appellate civil case files.
This policy option would establish levels of access. We do not recommend any change in the current
policy regarding the availability of case files at the courthouse.
Since all judicial appeals in Social Security and SSI cases take place in the federal court system,
NOSSCR is very interested in the Judicial Conference's study of the privacy and security
implications of providing electronic public access to court case files. We recognize the advantages
to the courts and attorneys in allowing documents to be filed electronically and in providing
electronic access to those files. However, these advantages must be tempered by ensuring the
privacy rights of plaintiffs and protecting them from victimization through identity theft.
We are particularly concerned about public electronic access to Social Security and SSI case files
because they contain extensive personal, identifying information and other extremely private and
sensitive information. The administrative transcript filed by the Social Security Administration
(SSA) includes the plaintiff's Social Security number, date of birth, address, telephone number,
maiden names, earnings records, financial information, medical evidence and vocational reports.
The administrative record also contains a transcript of the hearing before the Administrative Law
Judge which includes testimony by the claimant about his or her impairment and by medical and/or
vocational experts. Further, the parties' briefs focus on specific, personal information and
extensively discuss it.
In addition to concerns about identity theft and disclosure of information without the claimant's
consent, some individuals may decide not to appeal denials if they believe that the information will
be available over the Internet to any third party. This could result in the unintended result of chilling
the right of individuals to pursue claims for benefits to which they are rightfully entitled.
In 1999, the Social Security Administration raised three major concerns regarding the Electronic
Case Filing Pilot in the Eastern District of New York: (1) a substantial increase in the risk of identity
theft because of the posting of the individual's Social Security number; (2) the ready availability of
personal information which SSA would not be authorized to release without the claimant's consent;
and (3) the right of claimants to appeal benefit denials to district court might be chilled because of
the potential for fraud and privacy invasion. SSA recommended the use of a standing protective
order prohibiting electronic access to the administrative transcript and to the parties' briefs. The
court eventually excluded Social Security and SSI cases from the pilot.
NOSSCR strongly agrees with SSA's concerns and urges the Judicial Conference to adopt an
approach that protects the privacy interests of Social Security and SSI claimants while
accommodating the need for public access to court documents.
Civil Case Files
We believe that Policy Alternative 3, establishing "levels of access," best meets the objectives
discussed above. This option would restrict electronic access to certain documents either by the
identity of the individual seeking access or the nature of the document to which access is sought, or
both. Judges, court staff, parties and counsel would have unlimited remote access to all electronic
case files. We have no objections to the continuation of the current practice that allows public
review of the file, either the paper file or electronic file, at the courthouse since, to date, it has not
resulted in significant problems.
Criminal Case Files
We recommend limiting access to criminal case files to parties, counsel, essential court employees,
and the judge, as described in option number 2. The policy also should ensure that personal
information about victims in fraud or misuse cases involving Social Security benefits should not be
available over the Internet.
Bankruptcy Case Files
To meet the objectives described above, we recommend adoption of option number 1, 3 or 4.
Personal, identifying information, such as the individual's Social Security number, should not be
posted on the Internet.
Appellate Cases
The same access rules that apply at the trial court level should apply to appellate courts.
NOSSCR offers its assistance to the Judicial Conference as it considers and implements a policy
regarding electronic access to court files. Our membership has extensive experience in handling
cases in the federal court system throughout the country and we would be pleased to provide further
information about Social Security and SSI cases.
No. 186
1/25/01
Jodie Z. Bernstein
Director of Bureau of Consumer Affairs
Federal Trade Commission
Washington, DC
The staff of the Federal Trade Commission's Bureau of Consumer Protection recently submitted the
attached comments in response to the request for public comment by the Department of Justice, the
Department of Treasury, and the Office of Management and Budget (the "Study Agencies")
regarding their study of privacy and security issues associated with consumer bankruptcy filings.
We hope that these comments may prove useful to the federal judiciary in its review of the privacy
and security implications of providing electronic public access to court case files, particularly with
respect to bankruptcy case files.
As you may know, the Federal Trade Commission has been involved in the broader public debate
about consumer privacy for the past six years. In addition, the agency has implemented the Identity
Theft and Assumption Deterrence Act of 1998, and is responsible for maintaining the federal
government's centralized repository for identity theft complaints and victim assistance. We have
found that the key pieces of information for identity thieves are a consumer's Social Security number
and date of birth. In our attached comment, we suggested that the Study Agencies may wish to
consider to what extent highly sensitive information, like the Social Security number, must be
included in public record data – a suggestion the Study Agencies adopted in the report they released
last week. We believe that this suggestion might apply equally to highly sensitive information
contained in non-bankruptcy case files, such as medical records, personnel files, and tax returns.
As the federal judiciary recognizes in its request for comments, the Internet and technological
advancements in databases and computing promise to transform our understanding of "public
access." Many of these changes will benefit consumers and society through greater availability of
information at a lower cost. At the same time, these changes may pose risks to consumer privacy
and may increase the threat of identity theft. It is vital that these potential risks be fully examined,
and we would be pleased to provide further assistance to the federal judiciary in its review of these
issues.
ATTACHMENT
Comments on Study of Privacy Issues in Bankruptcy Data
Dear Mr. Barnhill:
The staff of the Federal Trade Commission's Bureau of Consumer Protection is pleased to offer
comments in response to the request for public comment by the Department of Justice, the
Department of Treasury, and the Office of Management and Budget (the Study Agencies).(1) The
Study Agencies are conducting a study (the Study) of how the filing for bankruptcy relief affects the
privacy of individual consumer information that becomes part of a bankruptcy case.(2)
This comment focuses on the privacy and identity theft issues raised by the collection and use of
personal financial and other information in personal bankruptcy cases. As a threshold matter, the
Study Agencies may wish to consider to what extent highly sensitive information, such as a
consumer's social security number, must be included in public record data in light of the increased
risk of identity theft and other illegal conduct. The comment also suggests that the Study Agencies
consider prohibiting the commercial use by trustees of debtors' non-public data for purposes other
than for which the information was collected (i.e., to administer the bankruptcy case). Finally, the
comment suggests evaluating the interplay between consumers' privacy interests and the Bankruptcy
Code, focusing for example, on issues where private customer information is protected by a
company's privacy statement.
A. Interest and Expertise of the Federal Trade Commission
The Federal Trade Commission (Commission or FTC) is an independent law enforcement agency
whose mission is to promote the efficient functioning of the marketplace by protecting consumers
from unfair or deceptive acts or practices and to increase consumer choice by promoting vigorous
competition. The Commission's primary legislative mandate is to enforce the Federal Trade
Commission Act (FTCA), which prohibits unfair methods of competition and unfair or deceptive
acts or practices in or affecting commerce.(3) With the exception of certain industries, the FTCA
provides the Commission with broad law enforcement authority over entities engaged in or whose
business affects commerce.(4) Pursuant to these responsibilities, the Commission has acquired
considerable experience in addressing privacy issues in both the online and offline worlds,(5) and
has long had particular interest in, and gained extensive experience dealing with, privacy and
consumer protection issues.(6)
Beginning in April 1995, the Commission held a series of public workshops on online privacy and
related issues. It also has examined: Web site practices in the collection, use, and transfer of
consumers' personal information; self-regulatory efforts and technological developments to enhance
consumer privacy; consumer and business education efforts; the role of government in protecting
online information privacy; and special issues raised by the online collection and use of information
from and about children.(7) The Commission also has issued a series of reports to Congress
regarding privacy online: Privacy Online: Fair Information Practices in the Electronic Marketplace
(May 2000) (2000 Report); Self-Regulation and Privacy Online: A Report to Congress (July 1999);
Privacy Online: A Report to Congress (June 1998) (1998 Report). In its 2000 Report, a majority of
the Commission recommended to Congress that consumer-oriented commercial Web sites that
collect personal identifying information from or about consumers online be required to comply with
fair information practices.(8)
Concurrent with its online privacy activities, the Commission has implemented the Identity Theft
and Assumption Deterrence Act of 1998.(9) That Act directed the FTC to establish the federal
government's centralized repository for identity theft complaints and victim assistance. Indeed, the
Commission's toll free hotline, which was established so that consumers could report identity theft
and obtain counseling to resolve identity theft issues, averaged over 1,000 calls per week during the
months of July and August, 2000.
Identity theft occurs when a person's identifying information -- name, social security number,
mother's maiden name, or other personal information -- has been used by another to commit fraud
or engage in other unlawful activities. Common forms of identity theft include taking over an
existing credit card account and making unauthorized charges on it; taking out loans in another
person's name; writing fraudulent checks using another person's name and/or account number; and
opening a telephone or wireless service account in another person's name. In extreme cases, the
identity thief may completely take over his or her victim's identity -- opening a bank account,
obtaining multiple credit cards, buying a car, getting a home mortgage and even working, or being
arrested under the victim's name.
Although statistics from the Commission's Identity Theft Data Clearinghouse show that about 80
percent of identity theft victims who have filed a complaint with the Commission report
finance-related fraud, such as the opening of fraudulent credit, loan, bank, or telecommunications
accounts,(10) the Commission also has received hundreds of complaints involving an identity thief
obtaining employment, compiling an arrest record, or receiving government benefits in the victim's
name. Most of the consumers filing these complaints did not know how their personal information
had been compromised. However, the victim's social security number, coupled with date of birth,
are key pieces of information for identity thieves. These key pieces of information are of course
contained in bankruptcy filings.
B. Privacy and Identity Theft Issues Raised By the Collection and Handling of Sensitive Information
in Bankruptcy
The Study Agencies may wish to consider crafting future policies and procedures regarding the
collection, use, and dissemination of personal information in light of the highly sensitive nature of
the data collected and the new technological ease by which it can be used to facilitate identity theft
and other illegal activities. Personal bankruptcy cases may involve the collection of highly sensitive
personal information, such as social security numbers, financial information, credit information,
income, and details about routine living expenses.
As a threshold matter, the Study Agencies may wish to consider whether certain items of highly
sensitive personal information, such as an individual social security number, needs to be included
in "public record" data. It may not be necessary for those creditors, and other persons who need
notice of the filing and access to relevant information about the debtor, to gain access to such
sensitive data through a public record. This concern is heightened by the increasing availability on
the Internet of courts' public record data as well as data compiled offline from these same records
that is subsequently made available on the Internet. As noted above, a social security number is
currently the key piece of identifying information used to commit identity theft. Internet publication
of social security numbers through the bankruptcy process is one way for identity thieves to ply their
trade in a manner that is completely invisible to their victims and impossible for consumers to avoid
or mitigate. For example, the identity thief can use a victim's social security number to open
fraudulent credit, loan, bank, or utility accounts in the victim's name. A valid social security number
is also essential to the thief's ability to obtain a driver's license or other official identification in a
victim's name, and to obtain employment in a victim's name.(11)
Additionally, to the extent the Study Agencies determine that certain personal information should
be kept on the public record as part of the bankruptcy case, they may wish to consider the feasibility
of restricting, in an appropriately tailored manner, the commercial use of such public record data for
certain purposes unrelated to the bankruptcy.
As a related point, the Study Agencies have asked commentors to address "[p]rinciples for the
responsible handling of information in bankruptcy records" and describe "[b]usiness or governmental
models that can provide access to, and protect debtors' privacy interests in, bankruptcy records."(12)
Recognizing that certain information necessarily must be placed on the public record during a
bankruptcy case, the Study Agencies should consider ensuring that debtors are given notice as soon
as possible in the bankruptcy process as to how their information will be used and whether and how
it will be disclosed. Consumers cannot fully consider the implications of pursuing relief from their
debts in bankruptcy unless they are informed of the consequences and the extent and means by which
their personal and financial information will be divulged to parties in interest and the larger public.
The Study Agencies may wish to consider a requirement that potential debtors receive clear and
conspicuous notice of this information before any filing is made to begin the bankruptcy process. For
example, if the Study Agencies require that putative debtors receive notice of the potential
dissemination of bankruptcy information before filing, the burden of disclosure will rest on debtors'
counsel in the pre-filing consultation process. In this scenario, counsel would be required to certify
that they have notified debtors of the consequences of providing their personal and financial
information. Currently, counsel are required to certify that they have discussed with individuals
whose debts are primarily consumer debts the types of relief available to them through the various
chapters of the Code (see Bankruptcy Official Form 1). A certification of disclosures regarding
dissemination of private information could be accomplished in the same manner. Alternatively, such
disclosures could be made post-filing at the first meeting of creditors conducted pursuant to Section
341 of the Bankruptcy Code. The disclosures could be made in the informational sheets that the
United States Trustees or their designees presently distribute at Section 341 meetings.(13)
C. Future Practices for Collecting, Analyzing and Disseminating Information in Personal Bankruptcy
Cases
The Study Agencies have noted that "some trustees and creditors are considering compiling
information contained in bankruptcy records electronically for easier administration of bankruptcy
cases in which they have a claim. They may also envision some possible commercial use."(14) The
Study Agencies have asked for comment on an appropriate commercial use of such information.
"Non-public" data, described in the Federal Register Notice as "additional data gathered by
bankruptcy trustees in the course of administering the cases assigned to them," can include tax
returns, and additional documentation or information regarding the value of assets and amounts of
liabilities. Commercial use of such highly personal and sensitive non-public data raises several
problematic issues and should be prohibited. In addition to privacy concerns, the non-public data
should not be used for purposes other than those for which the information was collected (i.e., to
administer the bankruptcy cases) for four reasons.(15) First, as discussed above in connection with
certain items of public record data, disclosure of such non-public data may facilitate identity theft
and other illegal conduct.
Second, trustees - whether appointed from a panel to a particular case or appointed by virtue of their
position as a standing trustee -- serve as trustees as a result of governmental action and receive
sensitive private information from debtors as a direct result of their appointment as trustees. Trustees
use this information to scrutinize and marshal the debtors' assets, determine the universe of existing
creditors, and ensure that all available assets are liquidated for the benefit of those creditors. The use
of such non-public information for commercial purposes appears to fall outside the scope of the
trustee's responsibilities.
Third, it is well-established that bankruptcy trustees are fiduciaries and thus owe a fiduciary's duty
of loyalty to the bankruptcy estate and all participants in the system.(16) These common law duties
and principles remain viable today.(17) It is difficult to reconcile the common law prohibition
against self-dealing with the commercial use of information that trustees obtain in their fiduciary
capacity. It is also difficult to reconcile the commercial use of information obtained in a fiduciary
capacity with the Department of Justice's recent rulemaking prohibiting standing trustees from using
estate funds for their personal benefit.(18)
Finally, the commercial sale of such information by a trustee may implicate concerns under the Fair
Credit Reporting Act (FCRA).(19) Generally, the FCRA limits the disclosure by "consumer
reporting agencies" of "consumer reports," information that is used or expected to be used as a factor
in determining a consumer's eligibility for credit, insurance, or employment. Applicability of the
FCRA would turn on several factors including examination of the purposes for disclosing the
information as well as the actual uses of the information.(20)
Notwithstanding these considerations, if the bankruptcy trustees begin to use debtors' non-public
information for commercial purposes or any purpose other than the administration of the debtor's
bankruptcy estate, the debtor should receive notice of this use and be given some opportunity to
choose whether to have their information used in such a manner.
D. Related Issues
Finally, the Study Agencies may wish to consider the interplay between consumers' privacy interests
and the Bankruptcy Code in the context of evaluating possible additional statutory changes.
Traditionally, the Code vests a case trustee or a debtor in possession with sweeping powers to sell
assets free and clear of liens and claims.(21) It is also well-settled, however, that a debtor or trustee
in bankruptcy cannot take action in violation of extant law.(22) Recently, the Commission and
various States have asserted that the sale of private customer information in direct violation of a
company's privacy statement contravenes applicable law.(23) (We note that any governmental
actions to exercise or enforce police and regulatory powers are exempt from the automatic stay
pursuant to 11 U.S.C. § 362(b)(4).)
The interplay between these various interests is unsettled and involves competing considerations.
For example, the more valuable the customer information is perceived to be, the greater the pressure
on a bankruptcy estate to sell private information despite explicit pre-petition company promises to
the contrary. The Bureau believes that the interplay of the Bankruptcy Code and law enforcement
efforts to protect consumer privacy merit further in-depth analysis.
Conclusion
We are pleased to submit these comments. Please contact Jeanne M. Crouse, the Commission's
Counsel for Bankruptcy and Redress, at (202) 326-3312, if there are questions about our comments
or additional information that we may provide to assist your efforts in this important matter.
Respectfully submitted,
________________________
Joan Z. Bernstein
Bureau of Consumer Protection, Director
Federal Trade Commission
600 Pennsylvania Ave, NW
Washington, DC 20580
No. 187
1/25/01
J. Michael de Janes
General Counsel, ChoicePoint, Inc.
Alpharetta, GA
I. Introduction.
ChoicePoint Inc. ("ChoicePoint") submits the following comments in response to the request of the
Judicial Conference of the United States, Committee on Court Administration and Case
Management, Subcommittee on Privacy and Electronic Access to Court Records ("Subcommittee")
for comments regarding the privacy and security concerns associated with making federal court case
files available electronically.
As a result of law and tradition, the courts have long made court records publicly available, unless
there was a compelling reason not to do so. Court records contain information that is used by
businesses, individuals, and government for a wide range of socially beneficial purposes. As
discussed below, information products that draw information from court records and other sources
are utilized by businesses, individuals, and government for a wide array of socially beneficial
purposes. These purposes range from law enforcement to fraud prevention, to due diligence, to
locating missing children, beneficiaries, and heirs.
Private-sector companies, like ChoicePoint, use information from court records in a wide range of
information products designed to support these socially beneficial purposes. The private sector is
also sensitive to the privacy concerns associated with personal information. ChoicePoint and other
leading companies that utilize court records for information products, use personal information from
court records in a privacy-sensitive manner, complying with any laws that may be applicable, such
as the Fair Credit Reporting Act; complying with self-regulatory principles, such as those of the
Individual Reference Services Group; and complying with their own privacy principles.
As the courts consider the balance between access and privacy, ChoicePoint urges the courts to
continue their longstanding tradition of permitting and facilitating access to court records, while
restricting access in instances where there is a clear and compelling need to do so. Such an approach
will protect privacy interests while at the same time preserving the ability of governments,
businesses, and individuals to use the information in court records for many vital, socially beneficial
purposes.
II. Background.
ChoicePoint is the nation's leading provider of credential verification and identification services for
making smarter decisions in today's fast-paced world. Through the identification, retrieval, storage,
analysis and delivery of data, ChoicePoint serves the informational needs of the property and
casualty insurance market; life and health insurance market; private businesses, including Fortune
1000 corporations, asset-based lenders and professional service providers; and, federal, state and
local public sector agencies. ChoicePoint is also the largest provider of personal information
products to employers for pre-employment background screening purposes. In addition, ChoicePoint
is the leading private-sector supplier of personal information products to numerous government
agencies, including the Federal Bureau of Investigation and the Internal Revenue Service.
Continued access to court case files is vitally important to ChoicePoint customers. As described
below, ChoicePoint and our customers rely upon information contained in court case files for many
products and services that promote the greater good of society by enhancing public safety and
personal security and fostering economic activity and growth.
At ChoicePoint, protecting the privacy of personal information in public records is a priority. As
described below, ChoicePoint adheres to all applicable laws and industry-initiated self-regulatory
principles that govern the collection, use, and disclosure of personal information. In addition,
ChoicePoint has been and continues to be an industry leader in adopting strong consumer privacy
protections that go beyond the legal requirements.
III. Continued Access to Public Records Is Important for the Greater Good of Society.
Historically, information has been placed in court records because its availability served compelling
public purposes, including public confidence in the judicial system. ChoicePoint has recently
published the final results from its 2000 Public Opinion Survey, Public Records and the Responsible
Use of Information. We found strong majorities of the American public strongly support the use of
public records, including court records like criminal records and bankruptcies, for decisions that
matter to the greater societal good interests of personal safety and public welfare.
Our survey found that 86% of respondents think it is very or somewhat acceptable for commercial
services to provide criminal conviction records to employers making hiring decisions.
We also found that 81% of respondents think it is very or somewhat acceptable for bankruptcy
histories to be used by e-commerce businesses checking out the background of potential product
vendors. Finally, 96% of respondents think that it is very or somewhat acceptable for commercial
firms to use public records to locate fathers who have had court orders to pay child support but have
not paid, and have changed their addresses.
ChoicePoint relies upon access to public records, including, court case files, for numerous socially
important purposes including identity verification, identity theft prevention, locator services,
background checks, investigating insurance claims and subrogation cases, and pre-trial preparation.
A. Identity Verification and Identity Theft Prevention
The information industry, including ChoicePoint, uses personal information contained in public
records, including court case files, to combat identification theft. Without certain identifying
information, it is difficult, if not impossible, to verify whether an individual is who he claims he is;
to match the right person with the right data; and to identify the correct individual in response to a
request for data. Efforts to minimize and guard against identification fraud would be crippled if
private sector information repositories could not use personal identifiers to detect and guard against
identification fraud.
B. Additional ChoicePoint Products and Services
In addition to using personal information contained in court records in an effort to verify identity and
to prevent identification fraud, ChoicePoint uses court case file information to create products and
services used by legal firms, private investigators, insurance investigators, police, government
agencies, and many others:
Developing background information on a person or on a business: ChoicePoint is the largest
provider of pre-employment background screening services in the United States. Court case files,
including criminal history records and bankruptcy records, provide critical information for employers
considering an individual for certain positions. ChoicePoint is also a leading provider of online and
on-demand public records, including court records, for due diligence information services to secured
lenders, legal, and professional service firms.
Investigating insurance claims and subrogation cases: ChoicePoint may provide court record
information to insurance companies in connection with fraud investigations. Reducing the instances
of fraudulent insurance claims benefits all insureds by keeping premiums down.
Conducting pre-trial preparation: Representatives of the legal community rely upon ChoicePoint
products and services for trial preparation such as locating witnesses and finding assets.
Locating individuals: Personal information included in public records, including court case files,
may also be used to help locate individuals in connection with fraud cases; to track down individuals
whose child support payments are in arrears ("deadbeat dads"); to locate missing persons such as
kidnapped or runaway children, heirs, pension beneficiaries, witnesses, and prospective organ
donors; and, for law enforcement purposes (e.g., locating bail jumpers or fugitives with outstanding
warrants). For example, ChoicePoint is the leading provider of information services to the National
Center for Missing and Exploited Children.
Identifying and verifying the assets of a person (or business): ChoicePoint obtains information from
court case files, such as land records and bankruptcy records, regarding debtors' total assets and
liabilities. This information is critical to our customers, for example, in locating assets in connection
with child support cases and verifying that an individual has accurately represented his or her assets
in court proceedings.
IV. ChoicePoint Protects the Privacy of Consumers' Personal Information.
All of ChoicePoint's products are subject to important privacy protections provided by federal and
state laws, such as the Fair Credit Reporting Act and its state law counterparts, and/or self-regulatory
standards. A founding member of the Individual Reference Services Group ("IRSG"), ChoicePoint
adheres to the IRSG Self-Regulatory Principles which have been approved by the Federal Trade
Commission.
To underscore our fundamental commitment to privacy and our vision that good privacy is good
business – for ChoicePoint, for our customers and for consumers – we have adopted comprehensive,
state-of-the-art privacy principles which we apply in addition to the privacy protections mandated
by law or self-regulatory principles. ChoicePoint supports fair information practice standards
including a robust consumer notice, choice, consumer access and correction, data quality, and
meaningful oversight and remedies. These fair information practices are the very foundation of our
Privacy Principles.
In addition, ChoicePoint is one of the few companies, if not the only major company, in the nation
that has created a special committee within its Board of Directors devoted exclusively to privacy
issues, and in particular, to overseeing the implementation and future development of our privacy
principles.
Our commitment to privacy is also demonstrated by our extensive administrative, physical, and
technological security measures. For example, ChoicePoint takes steps to protect information from
unauthorized access by written security policies; employee background screening; employee
confidentiality agreements; security training; secure facilities (e.g., restricted access, access codes);
the use of encryption and firewall technology; monitoring employee/contractor/subscriber
compliance; and, audits. ChoicePoint also regularly undergoes review of its security policies and
procedures.
ChoicePoint also follows strict procedures to determine that subscribers are reasonably identified,
meet qualifications that establish them as appropriate users, and agree to terms and conditions prior
to accessing information. ChoicePoint follows a procedure to establish that the user is an established
professional or commercial entity. Access requires user identification and user passwords.
ChoicePoint does not provide access to members of the general public. We also require users to
agree to use the information appropriately or risk termination of their access.
V. Conclusion.
ChoicePoint is committed to balancing the individual's desire for personal privacy with society's
interests in protecting the greater good – the responsible use of information is a fundamental plank
in our business strategy. As we have found in our public opinion survey, there is a high level of
public support for access to government records, including court records, to facilitate consumer
transactions (e.g., bankruptcy records for loan applications) and to conduct employment background
checks (e.g., criminal conviction information for job applicants).
We are concerned, however, that some of the policy proposals under consideration by the
Subcommittee would restrict access to federal court case files, thereby impacting these greater good
interests in ways that are adverse to society and are unintended by the Subcommittee. For that
purpose, we respectfully ask that you reject any policy proposal that would restrict access to federal
court case files. I appreciate the opportunity to respond to the proposals, and if I can be of assistance
in the future as you seek ways to preserve the balance between privacy and the greater good, please
do not hesitate to call on me directly. ChoicePoint is interested in participating in a public hearing
on this issue if one is held.
No.188
1/25/01
Terry Francke
California First Amendment Coalition
Sacramento, CA
The California First Amendment Coalition (CFAC) is an independent, nonpartisan, nonprofit
organization whose purpose is to "promote and defend the people's right to know"—that is, the
freedom of information (to find out) and freedom of expression (to speak out) about matters of
public interest.
CFAC is particularly interested in this topic because of its frustrating involvement in a very similar
rulemaking exercise by the California court system several years ago. I served by invitation on a
special advisory subcommittee comprising representatives of trial judges, the state attorney general's
office, the information vendor industry, the legislature and a privacy advocacy group. The
committee's charge was to recommend rules or standards reconciling the conversion of paper case
documentation into electronic files with the common law and constitutional presumptions of access
to case information.
The subcommittee's report comprised a majority view, representing a consensus of the judges, the
attorney general's office and the privacy advocate, advising a minimalist approach; and a minority
report representing the views of CFAC, the legislator and the information industry participant.
The standing committee on court technology (of the California Judicial Council) received the report
and, to the surprise of all, adopted the minority view and recommended it to the council. As
published for comment almost exactly four years ago, the draft rule strongly favored public access
to computerized case files, in declaring:
* "Any record that a judicial branch agency makes available to the public shall be made
available electronically, to the extent that the agency has determined that it has sufficient resources
to do so. . . Electronic access may be provided at the agency's place of business, remotely, or both
. . . Remote access shall not be provided, however, to information in records that by law becomes
unavailable automatically after the passage of time or the occurrence of certain events.
* "Direct electronic access to court records must be reasonably available to individual citizens
and must include access through public terminals at the courthouse, and when feasible at off-site
locations such as public libraries."
* The court need not share with the public all the software features of its own data management
system, "as long as public information is reasonably available by means of software that is based on
industry standards or that is in the public domain."
* Electronic access charges may be "sufficient to recover the marginal costs of providing the
access," with costs, as defined in Government Code Section 68150(h), meaning "all costs associated
with duplicating the records as determined by the court."
* A court which contracts with a vendor to release information electronically "must also
provide the public with direct electronic access to the information to the extent that this rule requires
and at fees no greater than prescribed by this rule."
* Each court agency must designate a public records administrator to educate the public about
its rights, to develop protective procedures for confidential information, to train other court staff in
implementing the rule, and to serve as an initial ombudsman for complaints about electronic access.
This official's determination would be appealable to the presiding judge.
But this proposal provoked enough resistance from trial judges and court
administrators—particularly those in Los Angeles County—that it was scrapped. The issue was
quietly assigned to a new advisory committee, this time including no access proponents, and the
ultimate set of standards adopted by the council in October 1998 encouraged courts to hew to a
restrictive policy on access to case records in electronic form.
That action left the status of electronic court records access somewhere between the liberal position
first recommended by the court technology committee—essentially, the same presumption of access
as applies to the information in paper form— and the second position adopted by the reconstituted
subcommittee, namely elimination of any wholesale access, with only certain civil case records
available, and then only by case name request, all as part of a three-year pilot project. Both versions
had been framed as rules; what the council approved was merely a recommendatory standard.
As adopted by the judicial council, Section 38 of the California Standards of Judicial Administration
states, in pertinent part,
(1) (Electronic records) A court should grant access to an electronic record only when
the record is identified by the name or number of a case and only on a case- by-case
basis. A court need not grant access to all or part of an electronic record if access is
not feasible because of the court's resource limitations.
(2) (Summary reports) A court may provide access to electronic versions of summary
reports.
(3) (Direct electronic access for the public) Direct electronic access to court records
should be reasonably available to the public remotely, through the Internet, or by
means of software based on industry standards or in the public domain. When
feasible, remote access should be available at public off-site locations such as public
libraries. Access should also be available at public terminals at the courthouse.
But a key qualifier states, "Cases involving family law, child support, juvenile law, mental health,
probate, criminal law, or public offenses, as they are defined in Penal Code section 15, should not
be included in electronic records made available through remote access."
In short, by limiting any access to case-by-case party name or case number identification (rather than,
for example, cases defined by a time period), and by excluding altogether remote access to cases
involving criminal law or public offenses (i.e. those involving misconduct by public officials), the
adopted standards fall far short of the promise of the original subcommittee proposal, and tend to
discourage press or public interest in electronic access, which after all is not mandated in any event.
It is with that experience in the background that we react to the proposed alternatives here.
Case Law
The referenced staff paper, "Privacy and Access to Electronic Case Files in the Federal Courts,"
contains a helpful summary of some relevant case law demonstrating what appears settled or
unsettled, and under which authority and with respect to which information, on access to judicial
records. In general we would concede what seems obvious, that where there is neither a general
circuit consensus nor a final
determination by the Supreme Court as to whether certain documentation is presumed accessible as
a public record at all, a rule on electronic access cannot foreclose this determination by mandating
access in every instance.
On the other hand, we believe the references to two Supreme Court cases may be less helpful than
they appear. On pages 4 and 5 of the paper it is stated,
Despite the legal presumption that judicial records are open for public inspection, it is equally clear
that access rights are not absolute. The Supreme Court in Nixon v. Warner Communications
observed that:
[E]very 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. 435 U.S. at 596.
The Nixon court continued, however, in specifics not quoted in the paper:
For example, the common-law right of inspection has bowed before the power of a court to insure
that its records are not "used to gratify private spite or promote public scandal" through the
publication of "the painful and sometimes disgusting details of a divorce case." In re Caswell, 18 R.I.
835, 836, 29 A. 259 (1893). Accord, e. g., C. v. C., 320 A.2d 717, 723, 727 (Del.1974). See also
King v. King, 25 Wyo. 275, 168 P. 730 (1917). Similarly, courts have refused to permit their files
to serve as reservoirs of libelous statements for press consumption, Park v. Detroit Free Press Co.,
72 Mich. 560, 568, 40 N.W. 731, 734-735 (1888); see Cowley v. Pulsifer, 137 Mass. 392, 395
(1884) (per Holmes, J.); Munzer v. Blaisdell, 268 App.Div. 9, 11, 48 N.Y.S.2d 355, 356 (1944); see
also Sanford v. Boston Herald-Traveler Corp., 318 Mass. 156, 158, 61 N.E.2d 5, 6 (1945), or as
sources of business information that might harm a litigant's competitive standing, see, e. g.,
Schmedding v. May, 85 Mich. 1, 5-6, 48 N.W. 201, 202 (1891); Flexmir, Inc. v. Herman, 40 A.2d
799, 800 (N.J.Ch.1945).
Of the nine cases cited, almost half are from the 19th Century and the average year of judgment is
1920. Whatever the evolution of the common law may have been since then, it should be fairly
obvious that it is no longer, if it ever was, typical for trial courts to seal records to preclude the
satisfaction of prurient, defamatory of competitively injurious purposes. On the contrary: with the
exception of privileged trade secrets, courts are seldom even asked to do so. In fact it is a
commonplace that one of the considerations any attorney will counsel as a factor in deciding whether
or how to litigate a potentially embarrassing divorce, defamation, privacy or business case is
precisely that the publicity consequences of a trial may well be more mortifying than a judicial
resolution of the problem—even if legally favorable—may be worth. Accordingly, while the
common law presumption of access to judicial records is not absolute, and is rebutted or qualified
by statute in a significant number of contexts, it is still a very robust presumption in practice.
The paper furthermore states:
In United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S.
749 (1989), a case involving a database of information summarized in a criminal "rap sheet," the
Supreme Court recognized a privacy interest in information that is publicly available through other
means, but is "practically obscure." The Court specifically 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. 489 U.S. at 764.
In weighing the public interest in releasing personal information against the privacy interests of
individuals, the Court defined the public's interest as "shedding light on the conduct of any
Government agency or official," 489 U.S. at 773, rather than acquiring information about a particular
private citizen. The Court also noted "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." 489 U.S.
at 770.
The Reporters Committee case, of course, dealt with the Freedom of Information Act and access to
executive branch data, not access to court information. Its reference to "shedding light on the
conduct of any Government agency or official" simply derived from the court's interpretation of the
legislative purpose of the statute. It has nowhere been suggested that monitoring government in
general is an informing purpose of any presumption of access to court information. What is clear
is that the court believes that monitoring of criminal proceedings, in enabling speech and publication
about the judicial role in the criminal justice system, is a primary rationale for a First Amendment
presumption of access to court proceedings (see Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555, 575-78 (1980) and its progeny).
While the court has not extended the constitutional presumption to civil proceedings, the California
Supreme Court has effectively done so by concluding that a California statute's requirement that the
"sittings" of every court, other than those in family law matters, be open must be read in a manner
informed by the First Amendment presumption respecting criminal proceedings (see NBC Subsidiary
(KNBC-TV), Inc. v. Superior Court, 20 Cal.4th 1178 (1999)).
In summary, the Nixon case observes that the common law presumption of access to court
proceedings can be rebutted in appropriate circumstances—but that general proposition was not and
has not been controversial; and the Reporters Committee case dealt with administratively compiled
rap sheets derived in part from court records, and not with the original court records themselves.
Policy Alternatives
Civil Case Files
We urge the adoption of proposal 1, which states:
Maintain the presumption that all filed documents that are not sealed are available both at the
courthouse and electronically.
This approach would rely upon counsel and pro se litigants to protect their interests on a case-by-case
basis through motions to seal specific documents or motions to exclude specific documents from
electronic availability. It would also rely on judges' discretion to protect privacy and security
interests on a case-by-case basis through orders to seal or to exclude certain information from remote
electronic public access.
We find impracticable proposal 2, which states:
Define what documents should be included in the "public file" and, thereby, available to the public
either at the courthouse or electronically.
This option would treat paper and electronic access equally and assumes that specific sensitive
information would be excluded from public review or presumptively sealed. It assumes that the
entire public file would be available electronically without restriction and would promote uniformity
among district courts as to case file content. The challenge of this alternative is to define what
information should be included in the public file and what information does not need to be in the file
because it is not necessary to an understanding of the determination of the case or because it
implicates privacy and security interests.
The problem here is twofold. First, it amounts to a shrinkage of the accessible paper record to that
which is decided to be invariably innocuous on the Internet. Second, it assumes an invariant range
of information "necessary to an understanding of the determination of the case" as well as an
invariant range of information that "implicates
privacy and security interests." Third, it assumes that these fields do not overlap. To take the most
obvious example of why these assumptions are ill-founded, the determination of a civil action for
common law invasion of privacy by the publication of embarrassing private facts cannot be
understood without knowing the precise private facts disseminated, how and to whom and under
what circumstances they were disseminated, whose privacy was thereby allegedly invaded, what if
any defenses were argued, and by whom and in precisely what manner. If one looks at any published
appellate opinion dealing with such cases and starts subtracting the factual specifics, it becomes clear
that their absence disables understanding of the court's determination. Nor is this point confined to
privacy cases. At any trial, the judge uses rules of evidence to exclude that which must not be taken
into account by the jury. Appellate courts strive to include only those facts essential to their
conclusions. At either level, further redacting facts from the transcript or opinion runs a serious risk
of masking, blurring or misrepresenting the basis for the determination.
We find unsatisfactory proposal 3, which states:
Establish "levels of access" to certain electronic case file information.
This contemplates use of software with features to restrict electronic access to certain documents
either by the identity of the individual seeking access or the nature of the document to which access
is sought, or both. Judges, court staff, parties and counsel would have unlimited remote access to all
electronic case files.
This approach assumes that the complete electronic case file would be available for public review
at the courthouse, just as the entire paper file is available for inspection in person. It is important to
recognize that this approach would not limit how case files may be copied or disseminated once
obtained at the courthouse.
This approach gives the public no real benefit of the technology of remote access. It would not even
provide an on-line clue as to what cases are available for some kind of electronic scrutiny at the
courthouse. One would have to go there to make that discovery. Nor does it address whether or
how, at the courthouse, case files would be electronically indexed or searchable, or whether, as in
the California standard, one would have to already know party names or case numbers. Nor does
it address costs. Would the per page fee be closer to the Pacer rate or the current .50 as for paper
records? Dumbing down the system for anyone but those with a working stake in it seems a perverse
option.
We find unclear proposal 4, which states:
Seek an amendment to one or more of the Federal Rules of Civil Procedure to account for privacy
and security interests.
If what this means is reducing the range of accessible information in both paper and electronic form,
we have the same objection as in proposal 2, namely that it amounts to a reduction of the accessible
paper record to that which is decided to be invariably innocuous on the Internet. If all it means is
setting procedures for the court to deal with motions for sealing that are brought out of concern for
Internet access, then some new rules may be in order, so long as they do not simply codify broad and
conclusionary zones of "privacy" applicable to the record, irrespective of case particulars.
Criminal Case Files
We find unacceptable proposal 1, which states:
Do not provide electronic public access to criminal case files.
This approach advocates the position that the ECF component of the new CM/ECF system should
not be expanded to include criminal case files. Due to the very different nature of criminal case files,
there may be much less of a legitimate need to provide electronic access to these files. The files are
usually not that extensive and do not present the type of storage problems presented by civil files.
Prosecution and defense attorneys are usually located near the courthouse. Those with a true need
for the information can still access it at the courthouse. Further, any legitimate need for electronic
access to criminal case information is outweighed by safety and security concerns. The electronic
availability of criminal information would allow co-defendants to have easy access to information
regarding cooperation and other activities of defendants. This information could then be used to
intimidate and harass the defendant and the defendant's family. Additionally, the availability of
certain preliminary criminal information, such as warrants and indictments, could severely hamper
law enforcement and prosecution efforts.
This categorical preclusion of remote access is ironically inconsistent with the fact, noted above, that
the one sector of judicial activity which is constitutionally presumed open to the public is the
administration of criminal justice. The press, for example, covers the criminal side far more actively
and consistently than the civil side, and judicial accountability is, in the public's mind, far more a
concern for criminal than for civil justice. However skewed one may think this set of priorities, they
are and always have been realities.
We believe proposal 2 is unquestionably preferable. It states:
Provide limited electronic public access to criminal case files.
This alternative would allow the general public access to some, but not all, documents routinely
contained in criminal files. Access to documents such as plea agreements, unexecuted warrants,
certain pre-indictment information and presentence reports would be restricted to parties, counsel,
essential court employees, and the judge.
But we would urge that records be excluded from on-line access only for that period of time when
dissemination would cause some demonstrable harm or where any access is precluded by statute or
not presumed in any form. Plea agreements, for example, have been held to be presumptively
accessible, at least eventually, and the burden of persuasion has been held to rest with the proponent
(see Oregonian Publishing Co. v. District Court, 920 F.2d 1462 (9th Cir. 1990)). The circuits are
split as to whether open warrant documents are even subject to the common law access presumption.
Presentence reports are presumed confidential under federal rules, but may be opened at least to
inspection, upon a proper showing (see U.S. v. Schlette, 842 F.2d 1574 (9th Cir. 1988)).
Bankruptcy Case Files
We see all four proposals as having some merit, but would amend two of them as indicated.
1. Seek an amendment to section 107 of the Bankruptcy Code.
Section 107 currently requires public access to all material filed with bankruptcy courts and gives
judges limited sealing authority. Recognized issues in this area would be addressed by amending this
provision as follows: 1) specifying that only "parties in interest" may obtain remote on-line access
to certain types of information; and (2) enhancing the 107(b) sealing provisions to clarify that judges
may provide protection from remote on-line disclosures based upon factually supported and clearly
articulated privacy and security concerns.
2. Require less information on petitions or schedules and statements filed in bankruptcy cases.
3. Restrict use of Social Security, credit card, and other account numbers to only the last four digits
to protect privacy and security interests.
4. Segregate certain sensitive information from the public file by collecting it on separate forms that
will be protected from unlimited public access and made available on-line only to the courts, the U.S.
Trustee, and to parties in interest.
Appellate Cases
We urge proposal 2, if it means that access (including remote access) restrictions could be imposed
only at the trial level, and could be removed upon a proper showing in the appellate court. We are
not sure what proposal 1 means. The proposals state:
1. Apply the same access rules to appellate courts that apply at the trial court level.
2. Treat any document that is sealed or subject to public access restrictions at the trial court level
with the same protections at the appellate level unless and until a party challenges the restriction in
the appellate court.
Summary
To the extent that a technological innovation is useful and widely adopted, it supports crime and
mischief as well as progress and productivity. Telephones facilitate any wrong that can be done by
communication, cars and freeways aid any menace to person or property that can be perfected by
rapid escape. Much of the discussion of the Internet, in both the popular press and more sober
journals, emphasizes its potential threats to privacy, decency and law-abiding behavior.
It is not surprising, then, that the prospect of making court records immediately (if not freely)
accessible to the world over the Internet gives many people pause for many reasons. It promises to
allow the press and public to search and sort and analyze and redistribute information about how the
courts are behaving—to begin to understand otherwise practically invisible drifts and tendencies in
how justice is done, and for whom, and to whom. It will allow the public to connect the dots and
trace patterns and relationships as never before.
But the very nature of the courts makes many especially nervous about how all this may be
electronically mined. Courts operate by very strictly channeling and cabining the flow of
information, and at the same time demand great quantities of absolutely candid, often humiliating,
sometimes defamatory, sometimes even economically or personally risky, disclosure.
We offer two suggestions overall. The first is imperative, Access to paper records must not be
contracted to achieve a level of disclosure "safe enough for the Internet." Rather than reducing the
public record entirely to achieve such a comfort level, on-line access proposals would be better
tabled.
The second suggestion reflects a respect for understandable anxieties, and it is that on-line access
can be piloted or subject to sun setting, or both. There need be nothing universal and irreversible
about the proposals so long as traditional paper access operates in the background. Implementation
can begin with cases filed on and after a date certain, and can pause after a set period to evaluate the
results and adjust the rules if need be. Implementation is not without cost, but the costs should be
nowhere near those of building and staffing physical installations like courthouses, and retrofitting
the system, if necessary, should be a correspondingly modest investment.
No 189
1/25/01
Judge James Starzynski
US Bankruptcy Court
Albequerque, NM
As you may gather from the response we are sending, we perceive that some of the suggestions
floating around would have a major impact on our use of ACE, including the possibility of us simply
having to shut ACE down altogether (in our court) depending on when and/or what the AO might
require. For example, even changes that some people would consider to be fairly minor could only
be accomplished by such major restructuring of parts of our system that we could not comply quickly
enough to be able to continue to use the system. And of course the fact is, as I have mentioned at
previous Department Head meetings, we have more and more people that rely on ACE for
information, filing, etc. and are very enthusiastic about doing so.
What lends a bit more urgency to this communication is that the American Bankruptcy Institute sent
out a bulletin today, saying that DOJ, OMB and some other federal agency -- but not AO -- has
conducted studies and found that the wealth of information available in bankruptcy files poses a
danger of identity fraud, etc., and that therefore they have concluded that access to BR files needs
to be curtailed. While that conclusion is probably correct (and that says nothing about the extent or
immediacy of the danger, only that [and I agree] there is some increased risk now that was not there
before this information was made available on line), a remedy decreed by the AO or anyone else
without our input could be a disaster, as I have suggested in the preceding paragraph.
No. 190
1/25/01
San Antonio, TX
It is my opinion that, given the concerns of practical obscurity balanced against public access, as well
as the perceived and real abuse of greater openness, there must be a balance cast between the
competing rights. One possible balance, if it could withstand constitutional scrutiny (as perhaps
protecting the [limited] right to privacy may be considered important enough to impose limited
protections), would be to create classifications of information/documents, such that those within a
certain class would be quasi-protected, at least in an electronic database accessible to the greater
public created by the internet. In other words, a class 'A' document, one for example with the most
private of information (i.e. settlement agreements/divorce decrees...), might be shielded or screened
depending on who is requesting the document. Lawyers might be required to either obtain a
password based on their bar number, police and government agents based on some other
identification number. In any case, there is no question there are competing interests and rights
involved. As such, it seems to me there is no question that a balanced approach, one far more gray
than black and white will be required to satisfy this need for balance.
No. 191
1/25/01
R. Daniel Lyons, Esq.
Downers Grove, IL.
All files that are not sealed should be open for inspection both at the courthouse and electronically
without cost to the public. Any censoring of this information or any imposition of costs upon such
information will lead to a situation where the public to one extent or other is deprived of the ability
to review judicial documents. Judicial documents kept in secret and judicial censoring of public
information is a very bad precedent to set, as is imposition of fees to view these documents. Simply
add an extra charge for the filing fee or obtain more tax money from the Congress to implement
electronic file access.
No. 192
1/26/01
Margaret Gay
US Bankruptcy Court
Albuquerque, NM
We have reviewed the documents posted at www.privacy.uscourts.gov and wish to provide feedback
from our court as a whole before the Judicial Conference reviews this complicated issue.
The federal courts in New Mexico have been providing case information to the public through the
Internet since 1995. This includes pdf images of the documents themselves. As the number of
documents on the Internet has increased, we have seen reductions in the number of phone calls we
receive in the clerk's office, the number of copy requests we receive and the number of case files we
must pull to obtain case information for interested parties. Additionally, our system integrates with
an electronic noticing program. Electronic noticing has significantly decreased the number of paper
copies we must process and distribute locally. There is no question that electronic access to court
records has provided a substantial savings both in terms of dollars and man hours. The customer
service benefit has also been significant.
During the last six years, our court has never received a complaint about the publication of court
records on the Internet. We have not been made aware of any harm caused by the release of these
records electronically. We realize that forfeiture of privacy is a very real problem and have
continually considered the many facets of this issue while embarking on our electronic filing
initiative. In the end, we have continually concluded that the benefits of electronic access have
outweighed the potential costs.
We ask that the Judicial Conference consider the following points when formulating
recommendations and issuing guidelines to the court on electronic document access:
We feel it is imperative that the Judicial Conference and the AO formulate any policies on this issue
in conjunction with the courts. Only individual courts can sufficiently assess the practical effect of
policy determinations at a level of detail sufficient to avoid unintended consequences. We have
reviewed the bankruptcy case file policy options suggested on the web site. We feel that
implementation of any of these options could have serious unintended ramifications on court
operations. These options would require substantial changes to local procedures, reprogramming
of automated systems and new requirements for our trustees and practitioners. If any of these
options was implemented too quickly, our court would be unable to gather the financial and
personnel resources required to respond and we would have to discontinue the availability of our
program until we were able to comply. The local impact would be devastating. This does not mean
that we advocate that courts do nothing. It does mean that any solution must be sent to the courts
for comment and consideration before implementation to insure that it is locally feasible.
Use and availability of social security numbers is now widespread. We feel that efforts to curb
publishing of social security numbers are simply futile. Meanwhile, many of our customers benefit
from the publication of social security numbers. We have many instances in our database where
different individuals have the same first, last, and even middle names. Without the use of the social
security number, it would be extremely difficult to distinguish between these people. The social
security number is the most accurate means of insuring that you are looking at information on the
correct individual in question.
Proposals to attempt to segregate "sensitive" material necessarily involve changes in procedures
which may seem, at first, to be inconsequential. The reality, though, is that such an approach would
significantly increase the time necessary to process every single case and thus would carry with it
substantial resource need implications. Further, certain proposals, such as making some elements
of a case file available for inspection only by a few parties in interest, introduce multiple levels of
complexity and put the intake clerk on the line to make decisions about access to "public"
information. For example, if the standard for access was established to be parties listed as creditors
by the debtor and parties who had entered an appearance in a case, a creditor who was owed money
by the debtor but whom the debtor had not listed would not be given access to the file. Additionally,
as indicated above, the creation of such a dichotomy in the paper world would require creation of
a similar infrastructure in the electronic access world, which has the potential to require complete
re-creation of our systems for electronic access to information. This dichotomy also raises questions
about long-term file archiving and destruction standards and procedures.
The benefits of electronic access to full and complete case records far outweigh the potential for
misuse of this data as well as the cost that would be required to implement additional privacy
safeguards.
No. 193
1/26/01
New York Times, Co.
New York, NY
The New York Times Company is grateful for the opportunity to submit its comments on the
implications of providing electronic access to court files. The Company publishes The New York
Times, The Boston Globe, 15 regional newspapers and a national magazine, and it operates eight
television stations.
We commend the Judicial Conference for seeking comments on these important issues. We believe
that the transition to electronic case files represents a dramatic and wholly positive change. The
practical importance of the change cannot be overstated, and in most cases it is entirely
uncontroversial. A paper copy of a document filed in court (1) requires a trip to the courthouse to
inspect or copy, (2) is available for such inspection and copying by one person at a time, (3) is
available only during business hours, (4) may be archived in a warehouse only years after it is filed,
(5) may be in use at trial or in chambers, (6) typically can be copied only by very patient people with
vast amounts of pocket change on antiquated photocopying machines and (7) must be manually
searched for relevant information by, generally, uninformed agents for the parties actually seeking
the information. Electronic records solve all of these problems. We applaud the judiciary for its
efforts in this area.
The request for comments and the accompanying staff paper entitled "Privacy and .Access to
Electronic Case Files in the Federal Courts" suggest that in a limited number of ;areas restrictions
may be placed on electronic access where no restrictions exist as to the :paper records. We view
these suggestions as unwise, unwarranted and constitutionally suspect.
It may well be that information is currently available in paper documents filed in court that ought to
be withheld from public scrutiny. There are adequate measures available for litigants and others to
request the sealing of such information, although the standard is, properly, a difficult one to meet.
It may also be that thought should be given to systemic reform of what information should be
required of litigants.
What seems to us quite impermissible, as a matter of fairness and of constitutional law, is either of
the two kinds of discriminatory access discussed in the staff paper: (1) discrimination between those
seeking access to paper records versus those seeking access to electronic records and (2)
discrimination among those seeking access to electronic records based on status.
Indeed, the very notion that, because of the opportunity to disseminate judicial records through the
new technologies, access to records should become less public and more shielded is ironic and
antithetical to the very advantages which the public can gain from the Internet. It undermines the
progress which electric records represent if their use results in a diminution of records available to
the public.
The Supreme Court's rationale, in the watershed case of Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555 (1980), for the presumption of public access to courtrooms and court files applies equally
to the benefits of making court records more easily accessible to the public. Thus,
ready public access to court documents promotes more discussion and understanding of the judicial
system. 448 U.S. at 571-73, 577, n.12
ready public access gives greater assurance "that the proceedings were conducted fairly to all
concerned," 448 U.S. at 569-70, and serves as a check on corrupt practices by exposing the judicial
process to broader public scrutiny. 448 U.S. at 570.
ready public access to statements made in court documents even about ostensibly "private" matters
can prevent perjury and other abuses. 448 U.S. at 569 (openness "discourage[s] perjury, the
misconduct of participants, and decisions based on secret bias or partiality").
Newspapers study and report not only on litigations about government, but, as important, on cases
involving large national and local companies and on trends involving private, individual disputes.
In short, newspapers consider the whole panoply of litigations that make up our reporting on the
judicial system. What is truly private in covering public filings in cases which are newsworthy and
demonstrate trends in the judicial system is itself almost impossible to distinguish. But even were
the privacy interests at issue more susceptible to definition and segregation, there is simply no
adequate justification for the two sets of proposed discrimination.
If access is the good thing that the Supreme Court and First Amendment scholars say it is, it becomes
an even better thing if the press and public can exercise their access rights as a practical matter. To
allow complete access to paper files only would represent powerful discrimination in favor of those
with the means to send agents to courthouses -- the clients of private investigators and major news
organizations come to mind. Such discrimination against ordinary citizens interested in the workings
of the judicial branch or in monitoring the conduct and substance of litigations strikes us as
unacceptable.
It should be borne in mind, too, that any regulation aimed at electronic files may in relatively short
order amount to regulation of all court files, as paper records may well disappear entirely in our
lifetimes -- again achieving the opposite result of the advantages to public access which the new
technology offers.
The second proposed discrimination, based on status, is even more problematic. The request for
comments outlines a distinction between permitting complete remote electronic access to judges,
court staff, parties and counsel on the one hand and no such access to anyone else. This proposal runs
afoul of both the First and Fourteenth Amendments.
It is a flat violation of the First Amendment for the government to pick and choose who may obtain
access to information unless the discrimination is necessary to advance a compelling government
interest. See, e.g., Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986) (First Amendment prohibits
court from "selectively excluding" newspaper from access to discovery materials made available to
health officials and a competitor).
Such government discrimination violates the Fourteenth Amendment's equal
protection clause as well. See, e.g., McCoy v. Providence Journal Co., 190 F.2d 760, 765 (1st
Cir. 1951) (city's denial of access to tax records to one party while allowing it to a competitor
"constitutes a denial of equal protection of the laws"); Donrey Media Group v. Ikeda, 959 F.
Supp. 1280, 1286 (D. Haw. 1996) (access to government records cannot be selectively
administered consistent with equal protection).
Nor is the proposed discrimination based on status a practical way to achieve the asserted goal of
preventing dissemination of private material. There would -- and without case-by-case court
intervention, there could -- be no restriction on redissemination of that material by anyone entitled
to remote access. It is not unusual even today to see Web sites devoted to archives of a litigation
involving the site's creator.
The notion that the right way to protect sensitive material is to entrust it to litigation adversaries but
to deny general remote electronic access seems a very uneasy fit between the asserted goal and the
means chosen to reach it. And it seems to presume that those who might somehow cause trouble with
"private" facts garnered from electronic records would not bother seeking the same information by
a trip to the courthouse where the documents are readily available -- also a very speculative
assumption.
Of course, parties might be forbidden from such redissemination in appropriate cases. Seattle Times
Co. v. Rhinehart, 467 U.S. 20 (1984). But if there is to be court intervention in any event, a
case-by-case approach to every aspect of these issues is warranted.
The staff paper relies heavily for both sets of proposed discrimination on United States Department
of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). That case does
contain language contrasting "hard-to-obtain information" with "a computerized summary located
in a single clearinghouse of information." 489 U.S. at 764. That sounds apt. But the case involved
the application of the Freedom of Information Law's exemption for "unwarranted invasion of
personal privacy" to FBI "rap sheets."
The case thus did not involve (1) law governing the judicial branch (2) judicial :records or (3)
records available in paper form anywhere. The executive branch generally has no obligation to
disclose anything at all, and the public's access rights to executive branch information are governed
not by the Constitution and the common law but by porous and shifting legislation. The
presumptions concerning judicial records are entirely different and are rooted in the First
Amendment and a tradition of access that preceded the founding of our nation.
The plaintiffs in the Reporters Committee case made the argument that because bits and pieces of
the information they sought were available in public files, all information in all FBI rap sheets should
be made public. That is the argument the Supreme Court addressed in the passages quoted in the
staff paper. The Court had nothing to say about the situation here, where the very documents at issue
are judicial documents that are publicly available in their entirety, but only in paper form.
Among the topics on which comment was sought were "the appropriate scope of judicial branch
action in this area" and "whether it is appropriate for the judiciary to establish policy in this area."
We submit that current law and practice is entirely adequate, and that current rules should apply
equally to courthouse files whether stored in a clerk's office or in a computer. As Justice Brandeis
once said of the Supreme Court, "the most important thing we do is not doing." Bickel, The Least
Dangerous Branch, 71 (1962). Not doing is what the judicial branch should be doing here.
No. 194
1/26/01
Alice N. Lucan, Esq.
The Daily News, Memphis, TN
Washington, DC
I write to register my client's request to be invited to testify, should a hearing be held on the issue of
electronic access to federal court records. My client's perspective on access to federal court records
will be of value to the Administrative Office, as a commercial user providing electronic database
information to end users.
I have the privilege of representing The Daily News of Memphis, a legal notice publication, and, as
such, is a publisher with a long history in dealing with public notice issues. The Daily News of
Memphis was founded in 1886, and it has now been owned and operated by the same Memphis
family for four generations. In addition to publishing a daily legal newspaper, for the past four years
the company has enhanced its legal notice function by offering subscriber access, for a fee, to
criminal disposition records over the Internet. We now provide subscribers with access to criminal
disposition information in 22 states and we are preparing more court record data to go on-line. We
believe we have the largest such database in the country.
Nearly all of the Daily News business comes from large employment and tenant screening companies
whose use of the data is limited by statutes. Lawyers, private investigators, and law enforcement
agencies comprise another segment of our customer base. We believe it is a public service for the
prospective employer to learn whether someone about to be hired to handle money has any criminal
convictions. A school board should be able to check teacher applicants for a criminal background.
The mother seeking someone to care for her children should be able to find out easily whether the
applications she sees are sent by anyone who has a criminal conviction for sexual crimes. There
are myriad other legal and useful purposes for a public database with access to federal criminal
convictions.
At the point when specific proposals are made proposing changes (or not) to the PACER system, or
to the concept of providing public access to criminal disposition records, The Daily News would like
to have the opportunity to provide testimony and/or comment. At this point, we mean merely to
make ourselves known and to endorse the comments submitted on behalf of the National Newspaper
Association and the Reporters' Committee for Freedom of the Press. Thank you very kindly for your
attention to this request.
No. 195
1/26/01
Bruce R. Hulme
Assoc. of Licensed Detectives of New York
New York, NY
The Associated Licensed Detectives of New York State, Inc. (ALDONYS) founded in 1950,
represents the 3,000 licensed private investigators and security companies in New York State.
ALDONYS opposes restrictions that would deny public access to both civil and criminal court files,
other than those documents that have been previously sealed by the Court. However, we recognize
that files that are placed in an electronic medium allowing access from locations distant from the
courthouse or the repository of the physical record might warrant some reasonable restrictions.
There is a vast difference in physically appearing to inspect a court file after filling out requisition
forms under the watchful eye of a record clerk when given a file for review versus accessing
electronic files on the worldwide web from anywhere in the world for any purpose and with complete
anonymity.
If the courts wish to join the trendy stampede by government to place everything on a web site,
consideration should be give to implementing a PACER type system. Such a system might require
identification of the requester through the establishment of an online account for those individuals
and entities that have legitimate lawful purposes to seek the contents of electronic court files.
Consideration should at a minimum be given to allowing attorneys, paralegals and licensed
investigators and security professionals that routinely review court files continued access. Litigants,
insurance companies and various businesses can also demonstrate legitimate reasons to electronic
access.
We wish to emphasize that the duties of licensed private investigators and security firms in New
York have been held to be quasi law enforcement in nature. As a part of the administration of justice
they should be permitted continued access to court files irrespective of any restrictions that might
be placed upon the general public's access.
The undersigned has in the past testified before the Federal Trade Commission and the House
Banking and Finance Committee and New York State Legislative Committees and Commissions
regarding privacy issues on behalf of the private investigation and security industries.
Thank you for considering our concerns on this issue. Please contact us at 800.475.1399 if we can
be of further assistance to you in this matter.
No. 196
1/26/01
Laura R. Handman
Chair, Media Law Committee
Arts, Entertainment and Sports Law Section
District of Columbia Bar
Washington, DC
The Arts, Entertainment & Sports Law Section of the District of Columbia Bar respectfully submits
these comments to urge the Judicial Conference to develop electronic access policies that maximize
the ability of the public to obtain copies of judicial records over the Internet. The Comments were
prepared by the Media Law Committee, which includes attorneys who routinely represent reporters
and news organizations in news gathering matters. We therefore have a keen understanding of the
importance of keeping judicial files open and accessible and an appreciation for the enhanced
possibilities for journalistic excellence that would accompany improved electronic dissemination of
court records. The work that goes on in our nation's courts is of vital significance to all citizens, and
it should receive more, not less, attention. The Judicial Conference should therefore press forward
with policies to encourage the broadest possible distribution of court files and materials.
We realize that the Conference is only in the early stages of formulating policy in this area and thus
does not yet have a particular proposal to put forward for comment. Of the various "scenarios"
envisioned by the Conference in its Request for Comment, however, the Media Law Committee
endorses the continuation of the judiciary's present case-by-case approach to determining whether
any portion of a judicial file should be sealed. Under this framework, court records are presumptively
open, and any litigant or third-party may apply for a protective order in order to shield particular
pleadings or other materials from public view. The ad-hoc
balancing between First Amendment and common law rights of access with the legitimate privacy
interests of litigants and third-parties is the most appropriate way to reconcile the presumption of
openness with the case where privacy concerns require special solicitude.
The Media Law Committee is aware of the more detailed analysis submitted to the Conference by
the Newspaper Association of America ("NAA"), The Washington Post, Gannett Satellite
information Network, Inc., Dow Jones & Company and other news organizations. We write
separately to emphasize our commitment, as lawyers who often represent news organizations seeking
access to court records, to maintaining transparency in the judicial system. We identify three key
issues for the Judicial Conference to consider in devising its electronic access policy:
1. Legal Considerations
Included in the Request for Comment is a short description of the current state of access law
prepared by the Office of Judges Programs. This recital of leading cases and authorities establishes
that under the common law and/or the First Amendment a presumption exists in favor of access to
judicial records. As the NAA letter explains, there is some conflict within
the federal circuits as to the "nature and strength" of this presumption and what sort of showing is
required to defeat it. Because the Judicial Conference is not at this time presenting a single, detailed
policy option for comment, there are not any specific proscriptions to "test" under these
common law and constitutional access principles. But we urge that any Judicial Conference policy
that would have the effect of curtailing public access to court docket sheets and files on a wholesale
basis would raise serious legal questions.
2. Public Policy Considerations
On the public policy front, one need do no more than point to Justice Burger's memorable phrase in
Richmond Newspapers v. Virginia, 448 U.S. 555, 572 (1980) - "People in an open society do not
demand infallibility from their institutions, but it is difficult for them to accept what they are
prohibited from observing" - to highlight that the vitality of any democracy depends on the
transparency of its public institutions. Open court records serve to educate the citizenry on the
mechanics of our system of laws, thus creating a well-informed electorate
and inspiring confidence in the impartial administration of justice. Because most members of the
public are not able to routinely visit their local courthouses, the press's role is to function as the
people's surrogate and monitor what transpires inside, from criminal trials to civil suits to
bankruptcy proceedings. Access to court files is essential in order to provide the public an informed
means of evaluating the basis for judicial action. The free press is the institution that transmits
information from courtroom to family room. Limiting access to otherwise public files based on the
mode of storage, the means of access or the status of the individual seeking it, would be impractical
and without sound policy basis.
3. Journalistic Considerations
Media organizations consistently rely on court records as source material for news reports. Some
of the most prized reportage in recent memory, to be sure, is contained in the NAA's list of news
stories derived from judicial records. Journalists who cover the courts draw upon such records to
assist them in both deadline reporting as well as longer, more in-depth investigations. Access to
court records improves the all-around quality and accuracy of news journalism, values which the
Judicial Conference is committed to fostering. Better access assures better accuracy. Electronic
files, which can quickly survey a large pool of data, allows reporting that would otherwise be
impossible whether it is reporting on patterns and practices of police forces, comparisons of
sentencing burdens, recurring problems in product liability cases, trends in law enforcement, or
otherwise undisclosed criminal histories of public figures or public officials. For this additional
reason, both the federal judiciary and news organizations have a common interest in the construction
a wide-spread system of electronic dissemination of court records.
We look forward to further opportunities to offer our comments and recommend that there be a
public hearing, as the Judicial Conference develops its policy regarding access to electronic files.
*The views expressed above represent only those of the Arts, Entertainment and Sports Law Section of the District of
Columbia Bar and not those of the D.C. Bar or its Board of Governors. The comments were prepared by Laura R.
Handman of Davis Wright Tremaine LLP, Chair of the Media Law Committee, and Mark Bailen and Bruce Brown of
Baker & Hostetler LLP.
No. 197
1/26/01
Rene P. Milman
General Counsel
Newspaper Association of America
COMMENTS OF THE NEWSPAPER ASSOCIATION OF AMERICA, THE WASHINGTON
POST COMPANY, GANNETT SATELLITE INFORMATION NETWORK, INC., THE DALLAS
MORNING NEWS CO., COX ENTERPRISES, INC., PHILADELPHIA NEWSPAPERS, INC.,
DOW JONES & COMPANY, INC.,TRIBUNE COMPANY, THE MCCLATCHY COMPANY,
FREEDOM COMMUNICATIONS, INC., THE HEARST CORPORATION,
THE AMERICAN SOCIETY OF NEWSPAPER EDITORS, THE COPLEY PRESS, INC.,
CALIFORNIA NEWSPAPER PUBLISHERS ASSOCIATION ON PRIVACY AND PUBLIC
ACCESS TO ELECTRONIC CASE FILES
These comments are submitted by the Newspaper Association of America (NAA), a nonprofit
organization representing the interests of more than 2,000 newspapers in the United States and
Canada. Most NAA members are daily newspapers, accounting for 87% of the U.S. daily newspaper
circulation. One of the NAA's missions is to advance newspapers' interests in public policy matters,
including access to court records.
These comments also are submitted on behalf of the following newspaper publishers and
associations:
· The Washington Post Company, which publishes The Washington Post, with a daily
circulation of over 809,000 and a Sunday circulation of over 1.1 million.
· Gannett Satellite Information Network, Inc., which publishes USA TODAY, the
nation's largest-selling daily newspaper, with a circulation of approximately 2.3 million.
USA TODAY is available in 60 countries worldwide.
· The Dallas Morning News Co., which publishes The Dallas Morning News, with a
daily circulation of 520,157 and a Sunday circulation of 785,758.
· Cox Enterprises, Inc., which publishes The Atlanta Journal and Constitution and
through subsidiary Cox Newspapers, Inc. publishes 17 other daily and 25 weekly
newspapers with a combined circulation of over 1.5 million.
· Philadelphia Newspapers, Inc., a wholly owned subsidiary of Knight-Ridder, Inc.,
which publishes two daily newspapers. The Philadelphia Inquirer has a daily circulation
of more than 400,000 and a Sunday circulation of about 800,000. The Philadelphia Daily
News has a daily circulation of more than 150,000.
· Dow Jones & Company, Inc., which publishes inter alia The Wall Street Journal
newspaper and its international and interactive editions, Barron's magazine and other
periodicals, a number of electronic news wires, and, through its Ottaway Newspapers,
Inc. subsidiary, a number of daily and weekly community newspapers.
· Tribune Company, which through its publishing, broadcasting, and interactive
operations, publishes eleven market-leading newspapers, including the Chicago Tribune,
the Los Angeles Times, the Orlando Sentinel, and Newsday, owns and operates 22 major
market television stations, and operates a network of local and national websites that
ranks among the top 25 news and information networks in the United States.
· The McClatchy Company, headquartered in Sacramento, California, which publishes
11 daily and 13 non-daily newspapers. Its publications include the Star Tribune
(Minneapolis, MN), The Sacramento Bee, The News & Observer (Raleigh, NC), The
Fresno Bee, The News Tribune (Tacoma, WA), and the Anchorage Daily News.
· Freedom Communications, Inc., publisher of The Orange County Register in Santa
Ana, California, which has a daily circulation of more than 358,000 and a Sunday
circulation of more than 417,000.
· The Hearst Corporation, a diversified, privately held media company which publishes
newspapers, consumer magazines and business publications. Hearst also owns a leading
features syndicate, has interests in several cable television networks, produces movies
and other programming for television and is the majority owner of Hearst-Argyle
Television, Inc., a publicly held company that owns and operates numerous television
broadcast stations.
· The American Society of Newspaper Editors, which is a nonprofit organization,
founded over 50 years ago. It is a nationwide professional organization of more than 850
persons who hold positions as directing editors of daily newspapers throughout the
United States. The purpose of the Society includes assisting journalists and providing
an unfettered and effective press in the service of the American people.
· The Copley Press, Inc., which publishes The San Diego Union-Tribune and six other
daily newspapers in California, Illinois and Ohio and operates Copley News Service, an
international news service.
· California Newspaper Publishers Association is a trade association representing
approximately 500 daily and weekly newspapers.
As explained below, we believe that Internet technology should serve as an agent for fulfilling the
public's broad rights of access to federal court records, not as a rationale for scaling those rights
back. We therefore urge the federal judiciary to maintain its current case-by-case approach to sealing
information in court files from public view. With a well-developed body of precedent to inform the
process, the current approach leaves it in the capable hands of trial judges, subject to appellate
review, to weigh any privacy concerns about information contained in court files against the common
law and/or constitutional interests in open access to court records.
Introduction
The Administrative Office of the United States Courts is developing a web-based Case
Management/Electronic Case Files ("CM/ECF") system to replace current federal court case
management and docketing systems. The CM/ECF system will permit courts to create and maintain
electronic case files through paperless electronic court filings or electronic imaging of paper court
filings.
According to the Request for Comment on Privacy and Public Access to Electronic Case Files, the
courts plan to provide public access to electronic files, both at the courthouse and beyond the
courthouse through the Internet. At the courthouse, public computer terminals will be available free
of charge. Through the Internet, the public will have access through Public Access to Court
Electronic Records (PACER), a web-based system that will contain both the case dockets and the
actual case file documents. When fully implemented, the CM/ECF system will enable the general
public, from remote locations, to read and copy the documents that constitute not only the docket
sheets (which already are available electronically through PACER) but also the actual case files in
federal courts.
The Judicial Conference of the United States has requested comments on the privacy implications
of providing electronic public access to court files. We believe that, in light of the strong public
interest in access to court files, the federal judiciary should maintain its traditional reliance on
litigants to protect their privacy interests through motions to seal, and that no additional protections
are required at this time.
Our comments focus on why maximizing public access to electronic court records is wise policy, not
on legal analysis of proposed restrictions. The law regarding access to criminal and civil court
records is summarized in the paper entitled "Privacy and Access to Electronic Case Files in the
Federal Courts", prepared by the Office of Judges Programs of the Administrative Office of the
United States Courts. The law clearly establishes a presumption in favor of access to judicial
records, based in common law and/or the Constitution. The strength of the presumption, the
particular records to which it applies, and the nature and strength of the interest that is sufficient to
overcome the presumption differ among federal circuits. Suffice it to say that the legal picture is not
uniform throughout the country and that limiting access to court docket sheets and/or files
undoubtedly would raise substantial legal questions.
We do not believe that these legal questions need be reached because, for policy reasons alone,
public access to electronic case files should be maximized. In any event, the legal and policy
discussions overlap, as the policy issues discussed below are generally the issues addressed by courts
in deciding whether the presumption of access prevails when privacy interests are at issue.
The Importance of Public Access to Federal Court Records and Remote Public Access in
Particular
Public court proceedings – and the records of them – are fundamental to our form of government,
which depends upon an informed citizenry, the rule of law and government accountability. The
public nature of judicial proceedings has been so integral a part of our government that it is easy to
take it for granted; and therefore its importance bears explicit recognition.
In the largest sense, access to court records helps people understand how the judicial system works;
it fosters public confidence in the judicial system; and it assures that judges, and all participants in
a court proceeding, "perform their duties in an honest and informed manner." Republic of
Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 660 (3d Cir. 1991). As Justice Holmes put
it, access ensures "that those who administer justice should always act under the sense of public
responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the
mode in which a public duty is performed." Cowley v. Pulsifer, 137 Mass. 392, 394 (1882).
Through access to court records, the public – often via the press – learns two important kinds of
information. The first is the substance of specific court proceedings. In criminal cases, where
deprivation of the defendant's liberty is often the result and protection of the community is important
to the citizenry, the public interest in learning the particulars and the results of individual cases is
obvious. In civil cases, which adjudicate important personal and property rights, a similar public
interest is present. The second kind of information concerns the operation of the judicial system as
a whole. Through court records, the public can monitor the performance of the court system,
including such broad issues as, for example, sentencing for particular crimes in different federal
courts throughout the country. Court records also enable the public to learn about the functioning
of other government agencies, where, for example, records in a particular case shed light on the
performance of regulatory agencies that are supposed to protect public health and safety.
As explained in more detail below, journalists use court records in both these ways, and thereby
serve as the eyes of the public. On a daily basis, journalists use court records to help keep our
society current and informed on newsworthy events concerning the particular business before the
courts. Reporters also rely on access to court records to publish in-depth stories that shed light on
the functioning of the courts themselves and on other larger public issues.
1. Daily News Coverage
For daily news coverage, court records provide a reliable means of finding and checking important
historical information about people who are involved in newsworthy events, such as criminal
suspects; political candidates, nominees and appointees; and individuals involved in tragic episodes
such as accidents. Important national and local stories have emerged as a result of these routine
court records checks – not only about the newsworthy events themselves but also about the role the
court system and other government entities played in them.
For example, court records checks recently yielded important background information on the high-
profile Bridgestone/Firestone tire recall. Records from tort cases against Bridgestone/Firestone
helped USA TODAY chronicle evidence that the tire company and federal regulators knew about
tread separation problems well before the recall. See "Firestone Leaves an Indelible Impression,"
USA TODAY, December 26, 2000. The press also successfully moved in federal court to unseal
company documents that called into question the company's assertion that the problem tires were
manufactured in its Decatur, Illinois plant – a position which helped define the scope of the recall.
See "Factory Linked to Bad Tires; Data Point to Plant in North Carolina," The Washington Post,
September 28, 2000.
Court records checks have also routinely yielded important information on daily stories of primarily
local interest. For example:
· A reporter for The (Hagerstown, MD) Herald-Mail used remote access to criminal court
records in Maryland to discover that two candidates for elected office in a Maryland county had
previously undisclosed criminal convictions. One had been convicted in a different Maryland
county of felony theft and also had charges pending against him there. The other candidate had
a theft conviction from another Maryland county. Neither candidate had previously disclosed
his record.
· The Sun (Baltimore, MD) used court records last year to expose the saga of George
Dangerfield, Jr., a convicted drug dealer who acquired 125 rental houses in an East Baltimore
neighborhood known as "Zombieland." The story described how Dangerfield terrorized his
tenants, lead poisoned numerous children and jeopardized a $35 million urban renewal project
by buying up slum houses in the path of the project. This story was built on a large number of
criminal and civil court records to establish Dangerfield's criminal history, corporate structure,
general pattern of abusive conduct toward his tenants, and long record as a scofflaw violator of
city health and housing codes.
· In August 1997, The Washington Post reported on a traffic accident in the District
of Columbia in which a dump truck overturned when its brakes failed, killing a 17-year
old honors student. A computer search of court records in Maryland revealed that less
than a month before the accident, the same driver driving the same truck had been
involved in a crash in a Maryland county adjacent to the District that injured a woman
and her baby son and that also resulted from the truck's faulty brakes. Court records
further revealed that the driver had amassed a total of 31 traffic citations, including
several in Maryland. The coverage ultimately sparked federal regulators to review the
licensing process for commercial truck drivers.
2. In-Depth Stories or Series
Court records also have made it possible for newspapers to publish in-depth stories, or series of
stories, on crucial, and often complicated, public issues. The availability of court records enables
reporters to identify events and trends and to monitor the workings of courts and other
government agencies. Often these stories look at issues of public safety, and at the effectiveness
and fairness of the criminal justice system -- subjects of obvious importance to all citizens. Here
are some examples of investigative stories on topics of great public interest that relied heavily
on court records:
Public Health and Safety
· In a 1999 series "Home Health Care in Crisis – Criminal Caregivers," The Record
(Bergen County, NJ) examined court records in nearly every county in New Jersey and
found that the state allowed "thieves, drug dealers, and violent offenders to work as home
health aides, no questions asked." The newspaper found "criminals, fully certified by the
state, working alone in the homes of cancer survivors, the elderly, and the infirm, their
pasts hidden from vulnerable patients." Criminal court records "testif[ied] to the depth
of the problem. Plundered estates. Beatings. Shopping sprees paid for with stolen credit
cards."
· An April 3, 2000 story in USA TODAY, "Suffering in Silence," reported on allegedly
unsafe children's products and how certain manufacturers are not timely reporting
potential hazards to the Consumer Product Safety Commission. To illustrate this issue,
the newspaper relied on court records in products-liability claims for recent examples.
The court records also helped the newspaper locate lawyers for the manufacturers, who
expressed the view that government regulations do not make it clear when the companies
must report injuries involving their products.
· In October 1997, the Dayton (Ohio) Daily News published a series on serious
problems in military medicine. The newspaper went to court to obtain databases of
medical malpractice claims, and reviewed court records in individual cases, such as the
case of Leigh Clark, whose leg was permanently deformed after a military surgeon with
a history of malpractice punctured an artery during a routine procedure. In the wake of
the series, the Pentagon acknowledged its health system had serious problems and
proposed changes to make its almost 600 hospitals and clinics safer.
· In 1999, The Washington Post published a series "Invisible Lives: D.C.'s Troubled
System for the Retarded." Through court records checks, the newspaper revealed that
the managers of the city's largest nonprofit group home provider for the retarded, D.C.
Community Services, included "a convicted embezzler and six others found guilty in
Massachusetts of diverting money meant for the retarded to personal use." The
embezzler, Steven Pullman, told a judge that he stole money from the Town of Vienna,
Virginia to finance a $500-a-day cocaine habit. While Pullman was running D.C.
Community Services, at least two retarded persons living in one of its group homes were
severely injured – one severely retarded woman fell out of a moving van and was
dragged face down on the pavement and another woman in a later incident was severely
beaten by staff when she unfastened her seatbelt in the van. Civil court records further
revealed allegations by the nonprofit's board that Pullman "through a series of
unauthorized maneuvers... converted many of the nonprofit's homes, vans and other
assets to his own name."
· The Chicago Tribune analyzed computerized records of court files, in addition to
other electronic records, to determine the extent that errors by hospital nurses led to
patient deaths. The investigation revealed that "since 1995, at least 1,720 hospital
patients have been accidentally killed and 9,584 others injured from the actions or
inactions of registered nurses across the country, who have seen their daily routine
radically altered by cuts in staff and other-belt-tightening in U.S. hospitals."
· On October 5, 2000, USA TODAY published a story, "Workers Unwittingly Take
Home Toxins," based in part on information gleaned from court files. The story
documented how employees have exposed their families to toxins – mercury, lead,
asbestos, beryllium – by inadvertently transporting dust and other workplace remnants
in their shoes, hair and clothing. The article cited the concerns of many that the
Occupational Health and Safety Administration is not adequately addressing the problem,
in part because many employers are exempt from programmed OSHA inspections.
Police Practices
· In 2000, The Washington Post ran a series exposing fatal flaws in the District of
Columbia Police Department's homicide investigations. The series relied heavily on computer
analyses of information from court databases to track the progress of particular individuals through
the criminal justice system.
· In 1998, The Washington Post published "Deadly Force," a series revealing that
police officers in the District of Columbia shot and killed more people in the 1990s than any
other large American city police force. Using court and other police records, The Post
demonstrated a pattern of reckless gunplay by officers with inadequate training and little
oversight.
The Criminal Justice System
· The Chicago Tribune conducted hundreds of electronic searches of court records to
find capital cases in all courts across the United States in which there had been a finding
of misconduct to the detriment of the defendant (e.g., suppression of evidence,
ineffective assistance of counsel, deliberate errors in closing arguments). Based on the
search results, Tribune reporters traveled to many of the courts and examined the records
directly. The resulting five-part series, "Trial & Error: How Prosecutors Sacrifice Justice
to Win," published in January 1999, reported literally hundreds of homicide cases where
prosecutors violated their oaths by hiding evidence or twisting the truth, which resulted
in innocent people going to prison, some to Death Row.
· The following year, reporters and researchers from the Chicago Tribune conducted
hundreds of electronic searches to find convictions in Illinois capital cases where errors
occurred. Based on these electronic searches, reporters again examined court records
directly and interviewed participants in the trials. The resulting series showed a justice
system "tainted by misconduct and mistakes [that] has sent 12 innocent men to Death
Row in Illinois," and cited cases of defense attorneys' incompetence and inexperience.
The newspaper found that prosecutors used false testimony from jailhouse informants,
and faulty hair and fiber analyses to obtain convictions. As a result of the series, the
Governor of Illinois halted all executions until the problems highlighted in the series
could be examined and corrected.
· In a 1996 series "Justice By The Numbers," The Washington Post used federal court
records to look at whether the federal sentencing guidelines were actually promoting
equal justice under the law. The Post analyzed 79,000 criminal sentences and 300 court
opinions and found that discrepancies persisted under the sentencing reforms. Black
defendants, for example, were more likely than whites to receive the severest sentences.
And female defendants fared slightly better than men when sentenced for the same
crimes under similar circumstances. The analysis also revealed sentencing disparities
from region to region, and even from courtroom to courtroom.
· In 1998, The World (Tulsa, OK) published a series "Drunk Driving: A Sobering
Look." The newspaper spent six months analyzing computerized court records to
determine why there were so many alcohol-related fatal crashes in Oklahoma. The
World found a system fraught with loopholes, reluctant to fully criminalize drunk
driving, or to treat aggressively the underlying abuse issues.
· In 1991, The Hartford Courant performed a computer-assisted review of about
150,000 criminal case files and bail amounts, and found "huge inequalities between
minorities and whites in Connecticut's bond system." The newspaper reported that, even
with a clean record, "a black or Hispanic man will initially have to pay – on average –
more than double what a white man will pay to get out of jail."
· In 1998, The Washington Post compiled a database of all court records for
embezzlement cases in Northern Virginia for five years and demonstrated that the multi-
million dollar crime has little punishment. Large and small businesses, unions, church
groups and governments lost money to scheming employees. Even when the embezzlers
were convicted, they rarely repaid their victims, even when restitution was a key to their
remaining out of prison.
The Civil Justice System
· In 1995, the National Law Journal examined "11,940 civil cases that the federal
judiciary itself has deemed judicial emergencies for having lasted three years" to
determine the sorts of cases that make up the federal court backlog. The investigation
found that, contrary to popular rhetoric, "[t]he legal problems of American business – not
claims by avaricious personal injury victims or attention-seeking prisoners – engorge the
belly of the beast that is the federal district courts' backlog."
Local Government
· In 1998, the Los Angeles Times published a series "Failure to Provide: Los Angeles
County's Child Support Crisis." The newspaper used court records in its five-month
investigation into the nation's largest county-based child support collection program.
The investigation showed that the program was failing on multiple fronts: failing to
collect current support in more than 90% of its cases; leaving millions of dollars in
collected child support payments sitting in interest-bearing accounts because, among
other reasons, officials could not locate the intended recipients; prosecuting and
impoverishing men who are not even the real fathers of children to reap incentive funds
for dollars collected; and failing to use some $6 million in available funds for
improvements, including staffing.
· The Chicago Tribune learned that employees of the Illinois Secretary of State were
taking bribes to license truck drivers who failed the written tests, the road tests, or both.
In many cases, the drivers were unable even to read and understand road signs. The
Tribune checked various public records databases, including court records, to find out
what happened to these drivers. The electronic court records showed that some of the
drivers were later involved in fatal accidents and in some cases were charged with
manslaughter.
· In 2000, The Star-Telegram (Fort Worth, TX), published a series "Examining School
Construction." The newspaper sifted through "thousands of pages of school and court records"
on procurement, contracts, state laws and the backgrounds of officials in the school construction
business. The report uncovered a virtual monopoly in area contracts, and helped make school
construction one of the top issues in upcoming school board elections.
Consumer Protection
· In March 2000, The Palm Beach Post published "Boca Raton: A Great Place To Be
A Rich Crook." The newspaper used federal court records available on-line to gather
background information on more than a dozen New York stockbrokers who moved to
South Florida. Through internet access to New York court records, the newspaper found
that these brokers faced criminal indictments, bankruptcy, and civil lawsuits from ex-
customers and federal regulators before moving to the Boca Raton area, where generous
property laws help shield ill-gotten gains from federal regulators.
Guns
· The (Baltimore) Sun analyzed nearly 3,000 criminal court records and wrote a series
documenting the failure of Baltimore City courts to impose the mandatory five year, no-
parole sentence for offenses involving the use of a handgun in the commission of a
felony. Their analysis showed that fewer than one in four people charged with gun crimes
got the required sentence, prompting public debate about the effectiveness of the law in
combating violent crime in the city.
· In a 1999 article "When Guns Are Brought to School," the Los Angeles Times
studied court records to show that relatively few youths caught on LA County campuses
with firearms served time. The newspaper found that most got probation, leaving some
experts wanting to correct flaws.
Drugs
· In 1986, The Wall Street Journal used federal court transcripts to reveal how Panama's tax
laws allow dummy corporations to be set up there and used to hide assets and launder drug
money.
National Security
· In 1989, The Wall Street Journal used affidavits filed in federal court by customs agents to
document how one man smuggled U.S. missile materials and parts to Egypt.
As these examples illustrate, court records are longstanding, fundamental and crucial news gathering
tools. In sum, court records help newspapers get stories right, make stories better, and publish stories
of public importance that we could not otherwise write.
3. The Importance of Internet Access
Over the past several years, remote access to court records, in particular, has become an integral part
of the news gathering process. Many of the newspaper stories described above utilized remote
access, and, as a practical matter, could not have been published without such access.
Perhaps no better example of how the Internet can foster timely and accurate reporting on the
judiciary may be found than the recent litigation arising out of the presidential election. Both the
United States and Florida Supreme Courts, clearly recognizing the public interest, posted the
arguments of counsel and the rulings of the Court on their web sites, with remarkable speed. By
enabling remote access to these documents, the Court significantly contributed to the quality of the
reporting and the nation's understanding of the election controversy.
Similarly, Internet access to pleadings greatly enhanced coverage of recent litigation against the
nation's leading cigarette manufacturers. Stanford University Law School monitored all the courts
– state and federal – where tobacco cases were being litigated and posted briefs and any public
records on the web. According to the Dallas Morning News, which garnered awards for its coverage
of the federal suit filed by the state of Texas against the cigarette manufacturers, the website became
a valuable resource for reporters following the cases, helping educate them about the tobacco
industry.
At the present time, the PACER system affords remote access to federal dockets. Given the practical
impossibility of checking the records in all federal courthouses, and the need for access at hours after
the courts have closed – especially during breaking news events – newsrooms have relied on the
current PACER system to help bring important stories to the public. When news is breaking,
PACER permits newspapers to do the most basic fact checking after the courts are closed. PACER
eliminates the need for time consuming trips to the courthouse to monitor cases for routine but
noteworthy developments such as trial dates, and motion filings. PACER also lightens the workload
of the court personnel who are not required to assist the reporters.
The Judicial Conference's careful study of this issue – and its consideration of a proposal to expand
the information currently available through PACER to include court filings – is laudable. An
enhanced PACER system that includes the ability to read and download complaints, indictments,
motions, orders, and other documents contained in the federal courts' case files will be a tremendous
resource for attorneys, judges, court personnel, and the public, including the press. It will enhance
our ability to publish daily stories and in-depth investigations on matters of public interest. It will
reduce the amount of time court personnel spend handling requests from the press and the public to
review case files. Ultimately, by increasing the accessibility of information about the work of the
federal courts, it will promote public confidence in the judicial system.
Existing Court Practices Are Adequate to Protect Privacy Interests
The federal courts have always relied on a case-by-case approach to protecting privacy interests
implicated by access to court records. A concerned party can file a motion requesting that the court
seal specific documents to shield them from public view. The court then must decide whether the
movant's privacy concerns with regard to the specific documents are sufficiently compelling to
overcome the general presumption of open access. The trial judge may then fashion an appropriately
tailored sealing order that serves the specific privacy interest while safeguarding the public's interest
in an open court system.
In addressing the adequacy of the courts' current practice, it is important to note at the outset that
the vast bulk of the information contained in federal court case files by its nature does not raise
privacy concerns. For civil cases, the bulk of discovery information – which would tend to include
the most personal and far-ranging information – is not filed in court. Moreover, even information
that might be considered private in other contexts is less so when made part of a public court file.
This is especially true with regard to bankruptcy records. Those who voluntarily choose to take
advantage of bankruptcy protection have no reasonable expectation of privacy as to the information
about their personal finances that must be disclosed. Genuine privacy concerns therefore exist only
as to a small amount of information currently contained in federal court files. For that information,
courts have ample authority to issue sealing or other protective orders to shield it from public view.
We strongly believe that the current case-by-case approach, grounded in the time-honored balancing
analysis that requires the presence of a compelling interest in order to shield a court record from
public view, continues to present the appropriate framework for addressing privacy issues arising
from Internet access to court records. In the electronic world, litigants may continue to file motions
to seal specific documents entirely from public view, or to exclude specific documents from
electronic availability. Judges would then exercise their traditional discretion to decide whether the
privacy interests articulated are sufficient to overcome the usual presumption of open access, and
whether the remedy sought is sufficiently tailored to that interest. Currently, there is no reason to
believe that this approach will not adequately address privacy interests. Accordingly, we see no
reason why the federal judiciary should depart from this deeply ingrained approach to resolving
competing access and privacy interests in particular cases.
Those who voice support for implementing across-the-board restrictions on access to electronic case
files rely on the U.S. Supreme Court's decision in United States Department of Justice v. Reporters
Committee for Freedom of the Press, 489 U.S. 749 (1989), interpreting the Freedom of Information
Act (FOIA). But there are several differences between the Reporter's Committee case and the case
of access to electronic court files.
First, the Reporters Committee case concerned records of the executive branch, not court records.
Specifically, Reporters Committee involved FBI "rap sheets", which are multi-state summaries of
an individual's criminal history and include "descriptive information, such as date of birth and
physical characteristics, as well as a history of arrests, charges, convictions, and incarcerations." 489
U.S. at 752. Rap sheets are not documents filed in a courthouse. Rather, the FBI gathers this
information from law enforcement agencies at all levels of the federal and state governments. See
id. The rap sheets, in complete contrast to court records, are compiled for law enforcement purposes
and were never intended to be public documents, even though some of the underlying data might be
available in other public records. See id. at 752-54.
Second, the concern underlying the Reporters Committee decision was not with the fact that records
were stored, or that access would be provided, by electronic means. The concern stemmed instead
from the fact that the data itself was a compilation of information about a person that was gathered
from disparate sources, and which when assembled in a central location presented a cumulative
personal portrait that could amount to an invasion of privacy. As the Court explained:
Plainly there is a 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.
Id. at 764. Or, as Judge Starr put it at the court of appeals level, "computerized data banks of the sort
involved here present issues considerably more difficult than, and certainly very different from, a
case involving the source records themselves." Id. at 760, quoting 831 F.2d at 1128 (Starr,
dissenting). Repeatedly, the Supreme Court emphasized the "difference between scattered bits of
criminal history and a federal compilation." Id. at 767.
Here, there is no "computerized summary" of judicial and non-judicial records —no "compilation"
of "scattered bits" of information about an individual that might in assembled form implicate some
interest in personal privacy. Here the public would simply have electronic access to "the source
records themselves"—the same court files that are accessible today through physical inspection. To
be sure, electronic access will make the inspection of public records easier. But making inspection
of a public court file easier does not invade any privacy interest of any litigant. Reporters Committee
simply cannot be read to mean that it violates a litigant's privacy to save an interested member of
the public a trip to the courthouse.
Third, there is an important practical difference between the issue of electronic access to court files
and the issue of access to FBI "rap sheets" under FOIA that was presented in the Reporters
Committee case. Denying any possible privacy interest in FBI "rap sheets" would mean that the FBI
would have to produce rap sheets in response to any person's FOIA request for anyone else's rap
sheet—a prospect that would invite routine requests from employers and others, place an
unimaginable burden on the agency, and result in the wholesale dissemination of FBI records that
have not been traditionally available to the public. Allowing electronic access to public court files
would place a burden on no one, because access would be simple and automatic; and it would result
in the dissemination of no information that is not already available to the public.
Finally, because Reporters Committee involved executive branch records sought under FOIA, the
sole issue before the Court was whether the disclosure of FBI rap sheets to third parties "could
reasonably be expected to constitute an unwarranted invasion of personal privacy" within the
meaning of FOIA Exemption 7(C). Id. at 751. None of the First Amendment or common law rights
that attach to court records were implicated by the FOIA request for FBI rap sheets. Instead, the
Court was deciding purely "what the framers of the FOIA had in mind" when they created the
exemption at issue. Id. at 765. The Supreme Court's balancing analysis to determine whether
disclosure of FBI rap sheets could result in an "unwarranted invasion of personal privacy" was purely
a matter of statutory interpretation. Had court records been at issue, the Court would have had to
address a different and, much more demanding test, in order to maintain the records under seal --
whether the privacy interest articulated is sufficiently compelling to overcome the presumptive right
of public access and whether an order sealing the records (as opposed to other protective measures
that may be available) is narrowly tailored to serve that interest.
The demanding nature of the standard for sealing court records is grounded in our country's
longstanding belief that open courts are fundamental to our democracy, and its commitment to the
rule of law. By contrast, the Court specifically noted that "most States deny the general public access
to their criminal-history summaries" and that it was "reasonable to presume that Congress legislated
with an understanding of this professional point of view." Id. at 767.
In light of all these material distinctions, the Reporters Committee case provides no legal authority
that would permit, much less justify, a fundamental change in the federal judiciary's current case-by-
case access policy.
The Policy Alternatives
The Request for Comment concludes by presenting various policy alternatives on electronic public
access to federal civil, criminal, bankruptcy, and appellate court case files. The alternatives fall into
three general categories: (1) making electronic case files available to the same extent that paper files
are currently available; (2) creating "public" court files, different from the complete court files, that
would be available to the same extent at the courthouse or electronically; and (3) maintaining current
access to paper files, but providing limited or no access to electronic files.
For the reasons explained in Sections II and III above, we believe strongly that the federal judiciary
should provide the same access to electronic case files that it now provides to civil, criminal,
bankruptcy, and appellate case files in paper form.
The second approach – creating limited "public" court files – would result in a profound step
backward. It would limit information that is currently accessible in paper form. See, e.g., Civil Case
Files, option 2; Criminal Case Files option 2; Bankruptcy Case Files, options 1, 4. We see no
compelling policy reason, or any reason at all, for reducing the court records available to the public,
much less a reason that would withstand legal challenge. This approach is particularly troubling as
applied to criminal case files. Here, where no less than the liberty of criminal defendants is at issue,
the interest in public monitoring is at its very highest.
We also oppose the third approach – providing limited or no remote access to electronic case files
but full courthouse access to electronic and paper case files. See, e.g., Civil Case Files, option 3;
Criminal Case Files, option 1. Where the public has a demonstrably strong interest in access to court
records, and where the need for across-the-board (rather than case-by-case) closure is speculative,
we see no reason to impose blanket limitations on remote electronic access. Again, this approach
would be especially problematic when applied to criminal case files. The specific concerns about
remote electronic access to criminal case files – the safety and security of witnesses, hampering law
enforcement and prosecutors – can be dealt with on a case-by-case basis without imposing undue
blanket restrictions on court records of the utmost importance.
V. Conclusion
Electronic access to court records should complement – rather than mitigate – the important interests
that are served by openness. As the newspaper stories summarized in Section II illustrate, access to
court records generates valuable stories about the business before the federal courts, and about the
functioning of the court system and other government agencies as a whole. By doing so, open court
records help inform our citizenry, promote the public monitoring and the accountability of the court
system, and, in the end, strengthen our democracy and the rule of law. Electronic access to federal
case files (especially remote electronic access) will multiply these benefits by making them
accessible more widely, more easily, and more cost-effectively. We therefore wholeheartedly
support the federal judiciary's efforts to bring court records on-line.
Electronic access makes court records more available to the public and, as a result, raises the
question of whether the traditional case-by-case approach to addressing privacy concerns is
sufficient. While we recognize the need to balance access and privacy interests in making decisions
about the public disclosure and dissemination of electronic case files, we are deeply concerned that
the court system, in attempting to address the concerns of those advocating privacy protections, will
regulate electronic files in an overbroad manner that would not give significant weight to the
important policies that underlie open access to court records. We believe that when the competing
interests of privacy and access are weighed in light of the new CM/ECF system, the federal judiciary
should adhere to the same well-reasoned access policy for electronic case files that always has
applied to paper files.
We appreciate the opportunity to submit these comments in light of the importance of this issue. We
urge the Judicial Conference to hold public hearings if it is at all inclined to adopt a policy that
would depart from the court system's longstanding approach. We respectfully request an opportunity
to participate in any such hearings.
Dated: January 26, 2001
Respectfully submitted,
René P. Milam
NEWSPAPER ASSOCIATION OF AMERICA
1921 Gallows Road, Suite 600
Vienna, Virginia 22182
Phone: (703) 902-1600
Fax: (703) 902-1811
Email:
milar@naa.org
Carol Melamed
Eric N. Lieberman
The Washington Post Company
1150 15th Street, NW
Washington, DC 20071-0001
Phone: (202) 334-6000
Fax: (202) 334-5075
Email:
melamedc@washpost.com
liebermanen@washpost.com
Stephanie S. Abrutyn
Tribune Company
Two Park Avenue
New York, New York 10016
Phone: (212) 448-2944
Fax: (212) 448-2992
Email:
stephanie.abrutyn@tm.com
Barbara Wartelle Wall
Gannett Company Inc.
1100 Wilson Blvd.
Arlington, Virginia 22234
Phone: (703) 284-6951
Fax: (703) 558-3897
Email:
bwall@gci1.gannett.com
Karole Morgan-Prager
The McClatchy Company
2100 Q Street
Sacramento, California 95816-6816
Phone: (916) 321-1828
Fax: (916) 326-5586
Email:
kmorgan-prager@mcclatchy.com
David S. Starr
A H Belo Corporation
400 S. Record Street, 16th floor
Dallas, Texas 75202
Phone: (214) 977-2793
Fax: (214) 977-2703
Email:
dstarr@belo.com
James E. Grossberg
The Orange County Register
Levine Sullivan & Koch LLP
1050 Seventeenth St., N.W., Suite 800
Washington, D.C. 20036
Phone: (202) 508-1104
Fax: (202) 861-9888
Email:
jgrossberg@lsklaw.com
Andrew A. Merdek
Cox Enterprises Inc.
1400 Lake Hearn Drive, NE
Atlanta, Georgia 30319-1464
Phone: (404) 843-5564
Fax: (404) 843-7116
Email:
andy.merdek@cox.com
Robert J. Hawley
The Hearst Corporation
959 Eighth Avenue
New York, New York 10019-3795
Phone: (212) 649-2050
Fax: (212) 649-2639
Email:
rhawley@hearst.com
Katherine Hatton
Philadelphia Newspapers, inc.
400 North Broad Street
Philadelphia, Pennsylvania 19130-4099
Phone: (215) 854-4710
Fax: (215) 854-5105
Email:
khatton@phillynews.com
Rosemary Spano
Dow Jones & Company, Inc.
200 Liberty Street
New York, New York 10281
Phone: (212) 416-3805
Fax: (212) 416-2524
Email:
rosemary.spano@dowjones.com
Anders Gyllenhaal
Freedom of Information Chair
Executive Editor, The News and Observer
P.O. Box 191
Raleigh, NC 27602-9150
Phone: (919) 829-8958
Fax: (919) 836-5911
Email:
andersg@nando.com
Harold W. Fuson, Jr.
Judith L. Fanshaw
Attorneys for
THE COPLEY PRESS, INC.
7776 Ivanhoe Avenue
La Jolla, CA 92037
Phone: (858) 729-7618
Fax: (858) 551-0608
email:
harold.fuson@copleypress.com
judithfanshaw@copleypress.com
Thomas W. Newton, Esq.
James W. Ewert, Esq.
CALIFORNIA NEWSPAPER
PUBLISHERS ASSOCIATION\
1225 8th Street, Suite 260
Sacramento, CA 95814
Phone: (916) 288-6015
Fax: (916) 288-6005
Email:
tom@cnpa.com
No. 198
1/26/01
Michale Giordano
CARCO Group, Inc.
St. James, NY-document in adobe format
CARCO Group, Inc. ("CARCO"), founded in 1977 and headquartered in St.James, New York
with operations throughout the United States and Canada, provides leading edge fraud
deterrent/detection services including employment screening programs, risk mitigation services,
and automobile insurance fraud inspections.
As a leader in the development of comprehensive proactive and reactive investigative programs
and services in a timely and cost-effective manner to a diverse national and international client
base, we appreciate and applaud the efforts of the Judicial Conference of the United States to
explore the issues of electronic public access to federal court case files, namely, a) the judiciary's
plans to provide electronic access to case files through the Internet; b) the privacy and security
implications of public access to electronic case files; and c) the potential policy alternatives and
the appropriate scope of judicial branch action in this area. CARCO offers these comments to
assist the federal judiciary in providing policy guidance to the federal courts.
BACKGROUND
Through its offices in New York, Texas, Virginia, North Carolina and California, CARCO
produces in excess of two million reports annually. Employment screening and risk mitigation
services, including due diligence, litigation support,.2 forensic and intellectual property
investigations, are provided to many of the largest corporations in the United States and abroad.
Employment and vendor screening services are provided to a wide range of industries including
pharmaceutical, healthcare, electronics, communications, insurance, energy, manufacturing,
financial services, petrochemical and retail. Corporations have a responsibility to its employees,
invitees and customers to act in a reasonable and prudent manner in the selection, recruitment,
supervision and retention of its work force. To do otherwise, exposes the corporation to
potentially devastating negligent hiring, negligent retention and related lawsuits. Corporations
engage the services of CARCO, inter alia, to provide background investigations for employment
purposes. Investigations are conducted on vendors, contractors, temporary employees as well as
regular full and part time employees, and include the following key areas of inquiry:
· Criminal history records (federal and state)
· Personal identification
· Employment history
· Educational credentials
· Professional credentials/licensing
· Driving history
· Residence verification
· Credit profile
· Civil litigation/bankruptcy
· Military history
CARCO performs more than 30,000 federal public records searches annually. As a consumer
reporting agency, CARCO provides employment screening services under the purview of the
Federal Fair Credit Report Act ("FCRA"), and numerous state fair credit reporting statutes. The
FCRA requires separate disclosure to, and authorization by, the consumer prior to the preparation
of a consumer report for employment purposes. Further, the FCRA specifically provides for the
dissemination of public record information, including criminal, civil and bankruptcy records, to
the end user for employment purposes or other permissible purposes. However, the FCRA places
special restrictions upon the use of public record information when the information is likely to
have an adverse effect upon a consumer's ability to obtain employment. The Federal FCRA
requirements include providing consumers with contemporaneous notice that a consumer report
is being provided; or, in the alternative, implementing "strict procedures" to ensure that public
record information is complete and up-to-date. In today's economy, service providers such as
CARBO experience extraordinarily high pressure from the market place to provide public record
15 U.S.C. § 1681 - § 1681u, as amended through Pub. L. No. 105-347, the Consumer Reporting
Employment Clarification Act of 1998. 2 15 U.S.C. § 1681k. information in a timely and cost-
effective manner. This is especially evident in the employment screening industry where, given
the tight labor market, timely hiring is crucial to an organization's ability to be competitive.
Therefore, defining effective policy for the timely access to federal public record information is
in the best interests of all parties, including public record service providers, end users,
consumers, and the general public who may fall victim to criminal or negligent conduct.
DISCUSSION
I. Electronic Public Access to Federal Court Case Files.
CARBO wholeheartedly supports the trend of the courts to move swiftly to create electronic case
files and to provide access to those files through the Internet. In particular, we favor electronic
filing, as opposed to making images of paper documents, as described in the new case
management system, called Case Management/Electronic Case Files ("CM/ECF"). Public access
to electronic files, both at the courthouse and beyond the courthouse, through the web-based
PACER system will be more than adequate. Further, we concur that it is reasonable and prudent
to require that all users seeking access to the PACER system be required to open a PACER
account and obtain a login and password.
We strongly believe that the PACER system, or any other electronic access application available
for public use, be made available to authorized users without restriction and that all information
that is normally made available at the courthouse be made available online. This includes full and
complete information on civil, criminal, bankruptcy and appellate case files. However, it is
imperative that the courts consistently and uniformly use the system. With respect to the
PACER system, all too often, we find that there are some courts that have not entered public
record information for the full period of time (usually a seven-year period is used for
employment purposes), or the court does not contribute at all. Given the present limitations on
the information available through the PACER system, it is currently useful only as a "pointer
system." All too often, in searches of common names, the PACER system lacks sufficient
personal identifying information (e.g., date of birth, Social Security number, address, driver
license number, etc.) to ascertain whether the record truly belongs to the subject of the search.
These deficiencies require additional time and labor on the part of the requestor. Typically, this
necessitates a manual search at the court of record, which has an adverse impact on time service
and cost. Unfortunately, the current manual search procedures in effect at many courts
require an inordinate number of case files to be researched to ascertain positive identification of
the parties involved. Therefore, we suggest that the online system provide ALL available
identifiers, similar to that which is available in paper files, to facilitate the matching process
between the subject of the search and the subject of the record in the system. While this tends to
support the full disclosure option, it also presents challenges with respect to potential privacy and
security implications, as further discussed below.
II. Potential Privacy and Security Implications of Electronic Case Files
CARBO wholeheartedly supports the judiciary's long tradition of open access to public court
records. While technology MAY present the opportunity to adversely impact the balance between
access rights, privacy and security interests, we believe that there are presently sufficient court
mechanisms in place to limit the risks associated with online public access. However, should the
judiciary ultimately conclude that online access through the Internet definitively increases the
opportunity for misuse of sensitive and/or personal identifying information, there are appropriate
safeguards that can be implemented, not unlike those in place at state-level courts and law
enforcement repositories. These options include, but are not necessarily limited to one or more of
the following:
Access is restricted to only those entities that have registered with the repository (source) prior to
receiving the requested information (pre-approved) and have a legitimate need for the
information.
Require the entity accessing the Web page or otherwise requesting the
information identify the purpose for which the information is being sought.
Consider electronic access via a non-Internet medium, such as a "dial-up"
system.
Utilize a modem callback system to prevent unauthorized access. Upon initial system access, the
modem telephone number is permanently logged into the host computer. On all subsequent calls
into the host system, following entry of the correct password, the system disconnects the call,
then dials the telephone number on record (note that this can be required to be a toll-free
telephone number at the remote site).
Require 128-bit encryption for Internet browsers.
Impose an annual subscription fee and/or fidelity bond at levels deemed reasonable for business
use, yet high enough to discourage use by those with no legitimate need to access the
information.
Provide criminal and civil sanctions and remedies for violations. We believe that it is ultimately,
in the best interests of ALL parties, including the consumer, that entities with a legitimate need to
access the full public record –whether electronically or in paper format – be granted access to the
full and complete record of personal identifying information. This serves to prevent the reporting
of erroneous information (e.g., providing a record that is NOT related to the subject of the
search), which could have an immediate and adverse impact on the subject of the search.
III. The Role of the Federal Judiciary
CARBO understands and appreciates the concern that all governmental agencies have with
respect to privacy and access to public records. However, we embrace the position that "public is
public." The medium in which case files are stored should not affect the presumption that there
exists a right of public access. We believe that the current mechanisms for protecting privacy –
primarily through protective orders and motions to seal – are sufficient for online and paper
access purposes.
Should the trend continue whereby Congress or repositories of record implement individual
policies as to whether information should be deemed "public" in any format – electronic or paper
– rather than on limiting access to electronic case files, we would support a continued and
primary role by the judicial branch to assist in maintaining a consistent approach as to what is
deemed to be public information and the extent and manner in which such information can be
made available, particularly Federal court case files.
IV. Policy Alternatives on Electronic Public Access to federal Court Case
Files
Comments are presented in order of presentation in the Federal Register:
A. Civil Case Files
CARBO supports option (1), whereby ALL filed documents that are not sealed, are available
both at the courthouse and electronically. We support the widely accepted premise that litigants
do not have the same expectation of privacy in court records that may apply to other information
divulged to a government agency. As presented in the Administrative Office staff paper, "Privacy
and Access to Electronic Case Files in the Federal Courts," to some extent, "litigants must expect
to abandon a measure of their personal privacy at the courthouse door."
B. Criminal Case Files
CARBO does NOT support option (1), which would prohibit the electronic public access to
criminal case files. The logic provided in support of this proposal runs counter to the trend of
numerous state-level criminal history record files that are now routinely becoming available
electronically through the Internet or "dial-up" systems. The lack of electronic access will
adversely impact on CARBO's ability to provide a timely, cost effective product to its clients and
expose individuals and business entities to an unnecessary risk of harm. CARBO supports an
electronic access policy that permits as much information as possible for legitimate business
needs. This includes such purposes as employment, a legitimate business need for the
information in connection with a business transaction that is initiated by the consumer, or other
legitimate investigative purposes.
However, where such complete access is deemed to be counter to the needs of the majority, the
proposed option (2), whereby the general public would be allowed electronic access to some, but
not all documents, routinely contained in criminal files, would be a reasonable alternative.
Restricting access to documents such as plea agreements, certain pre-indictment information and
pre-sentence reports to parties, counsel, essential court employees, and the judge would be a
reasonable approach.
C. Bankruptcy Case Files
CARBO does NOT support any proposed action that would seek to limit the availability of any
information contained in the bankruptcy case file, regardless of the medium through which such
information is obtained. We support section 107 of the Bankruptcy Code as currently written,
whereby the public is granted access to all material filed with the bankruptcy courts with limited
sealing authority by the judges.
D. Appellate Cases
Assuming that unrestricted public electronic access is granted at the trial court level, CARBO
supports any option that would apply the same access rules to appellate court records that apply
at the trial court level.
CONCLUSION
For almost a quarter of a century, CARBO and its affiliates have served the nation's largest and
most prestigious companies. Our clients have chosen to use CARBO because of our ability to
provide a timely, high quality, and cost-effective service that helps to protect a company's
employees, invitees, assets and reputation, as well as reduce its risk of liability. Since its
inception, CARBO has protected and safeguarded the confidentiality of the information it
collects and disseminates. In fact, CARBO has never been the subject of a complaint to the
Federal Trade Commission, our industry's governing body. Therefore, it is our firm belief that
open access to public court records, whether obtained from paper sources or electronically,
should be allowed for legitimate business needs.
No. 199
1/26/01
Total Info Services Inc
Tulsa, OK
Introduction
TISI will limit its comments in this matter to the subject of Criminal Case Files.
The fact that an alternative being considered by the judiciary is to "not provide electronic public
access to criminal case files" greatly concerns TISI. Electronic public access to criminal case files
provides far more benefit than restricting such access. The method, ease and expense of access
should not drive public access policy. Policy should decide what populations e.g., employers,
have a legitimate, public-good reason to access the information through careful analysis and
consideration. Those populations granted access should have access through the fastest, most
convenient and efficient method-which is today electronic access. If a certain segment of the
population should not have access to criminal case files, this should be true regardless of the
access method chosen by the improper requestor. Rather than a blanket prohibition, which would
hamper the legitimate user and harm the general public, security measures should be adopted to
prevent improper access and institute penalties for misuse.
TISI, throughout its comments, would like to address the following statements:
1. Prosecution and defense attorneys are usually located near the courthouse. Those with a true
need for the information can still access it at the courthouse.
2. Further, any legitimate need for electronic access to criminal case information is outweighed
by safety and security concerns.
3. …limited electronic public access to criminal case files [should be provided], which would
allow the public access to some, but not all, documents routinely contained in criminal file
[Option 2]
Identification of Total Information Services Inc (TISI)
Total Information Services Inc (TISI) is a wholly owned subsidiary of The Official Information
Company ("TOIC"). TOIC is a portfolio company of Veronis Suhler & Associates, Inc. ("VS &
A") based in New York. TISI is the management and operations hub for several distinct
companies that provide pre-employment screening services to various vertical markets such as
the trucking, retail, airline, banking, health care and childcare industries.
Comments from three of TISI's divisions, DAC Services, USMA and RSI follow.
DAC Services
DAC Services was founded in 1981 and began operating in 1983. It is an information company
and is considered a "consumer reporting agency" under the Fair Credit Reporting Act (FCRA).
The purpose of the FCRA is to facilitate the flow of essential information concerning an
individual's background, while at the same time protecting that individual's privacy rights. This is
accomplished through the imposition of statutory and regulatory safeguards imposed on
"consumer reporting agencies" and the users and providers of their information, which are
designed to ensure the accuracy of the information being provided. A failure to comply with the
FCRA's requirements exposes DAC, as well as the DAC customer, to both civil and criminal
penalties.
DAC's principal business is providing the employment, criminal and driving history of interstate
truck drivers. It is the dominant company in this industry and the motor carrier industry really has
no effective alternative. They have as members approximately 7,000 employers, including 90 to
95 percent of the 200 largest "truckload carriers" in the country. They process thousands of
criminal records per day and over one million driving records per month. They also provide
MVRs to over 7000 insurers.
DAC is based in Tulsa, Oklahoma. DAC works extremely hard to follow the spirit as well as the
letter of all laws that affect their business. They are well known and well respected in the
industry and as a matter of fact, are endorsed by the American Trucking Associations and 39
state trucking associations as well as the national Professional Insurance Agents Association
(PIA).
Comments of DAC Services
The ability of motor carriers to screen the fitness of applicants for driver positions, including the
ability to quickly determine whether an applicant has a criminal history, is essential to public
safety. As a general rule, individual motor carriers spend approximately $3500 to recruit, screen
and hire one driver. On average, carriers will screen eight (8) applicants for every one (1) driver
they hire. Because of the high rate of driver turnover in the trucking industry, and the shipper's
demand that carriers keep their transportation rates down, it is essential that carriers have the
ability to screen applicants expeditiously while at the same time cost-effectively.
DAC's motor carriers depend on DAC to obtain criminal record information on job applicants.
There are several reasons that timely criminal record information is critical to motor carriers.
· The legal doctrine of negligent hiring.
The courts have imposed an obligation on employers to "assess the nature of the employment, its
degree of risk to third parties and then perform a reasonable background investigation to insure
that the applicant is competent and fit for duty." Several of DAC's motor carrier clients have been
sued for negligent hiring and in many of the cases, the carrier's culpability has revolved around
whether a criminal record was obtained. The courts have fairly consistently held that drivers-on
the road, away from supervision, and driving 80,000 commercial vehicles-pose a "high degree of
risk to third parties."
Another consideration is the timeliness of obtaining the information. It does little good to order a
criminal record after the employee has again committed the offense. Criminal records must be
obtained fairly quickly-before the driver is hired or put behind the wheel. Absent this ability,
motor carriers will be faced with the choice of dispatching a driver without verifying the driver's
criminal history or, idling the truck (and probably losing the driver applicant to another motor
carrier not so concerned about safety) while waiting for the criminal record to arrive. Forcing
motor carriers into this choice is a safety concern.
Obtaining a criminal record before dispatching the driver is therefore a key ingredient if a motor
carrier is to protect its business from ruin.
· The Canadian Border Problem
Under sections 19(1)(c) and 19(2)(a) of the Canada Immigration Act of 1976, individuals who
have been convicted of a "crime or offense" are considered "inadmissible"
Prior to being permitted to enter into Canada therefore, U.S. drivers are being subjected to
random criminal history checks by the Canadian authorities using information obtained from the
National Criminal Information Center (NCIC) database. Using the NCIC database, the Canadian
authorities are able to determine whether a driver has a "criminal record" and therefore cannot be
admitted without first obtaining a "Minister's Permit." According to the Canadian Consulate
General, a "Minister's Permit" can be obtained in a limited number of instances to overcome
inadmissibility, but it is a subjective, expensive, slow process and once obtained, the permit is
generally valid for only a limited period of time, usually 30 days. Obviously, this is not a valid
solution for motor carriers.
As a result of Canada's pre-screening process, drivers who have not been screened are frequently
denied access into Canada and their trucks impounded until a "clean" driver can take over. This
has resulted in substantial delays in transit and substantial costs to the carriers involved as well as
to their consignors and consignees.
As you know, the NCIC is for law enforcement purposes and motor carrier searches of NCIC are
illegal. Motor carriers are therefore forced to perform public record searches. Absent NCIC
access, motor carriers must have access to public criminal records.
· General Public Safety
While as described above, there are transportation-specific needs for criminal records, the
general, public-safety needs are compelling. DAC's customers employ individuals who are
responsible for the safety and transportation of children, disabled and elderly-the most vulnerable
segment of society. Our customers hire drivers that deliver supplies to schools, they deliver
furniture to private homes, they deliver meals and medical supplies to the elderly, they interact
with the public in thousands of ways every day. It is essential and commendable that these
companies wish to screen their applicants prior to duty.
An interruption in our members' ability to obtain timely criminal records would affect their
ability to hire safe, professional and responsible commercial driver employees-and it's not too
dramatic to state that this would endanger the public.
USMA
USMA helps thousands of retail hiring managers make better hiring decisions each day by
providing valuable and unique background information on job applicants. USMA is dedicated to
serving the retail industry and currently services more than 900 retailers in the US.
By using USMA for background screening, retail members are able to minimize their liabilities
by hiring workers without histories of theft or other wrongdoing.
USMA provides members with a single source for comprehensive and quality background
screening reports including screens run against proprietary databases, criminal history reports,
motor vehicle records, social security number verification, education and credentials verification,
employment history and drug testing.
Comments of USMA
The ability of retailers to screen the fitness of applicants, including determining whether an
applicant has a criminal history, is essential to protecting the retailer from theft and from the
liabilities associated with criminal threats to coworkers and the public.
Retailers attribute 42.7 percent of their inventory shrinkage (missing merchandise/cash/fraud),
12-billion dollars annually, to employee theft. As a rule, retailers spend approximately $3500 to
recruit, screen and hire one employee. The length of time worked by a dishonest employee is 9.4
months. The average cost of hiring and releasing a dishonest employee averages $15,000. In
order to thwart the onslaught of shrinkage, retailers hire ten loss prevention employees per $100
million in annual sales… with an average of 1.12 employees per store specifically dedicated to
loss prevention.
Loss prevention experts count on using background screens and criminal records to provide the
information necessary to make smart hiring decisions. More than 42 percent of retail internal
dishonesty cases and 57.2 percent of shoplifting cases are referred for criminal prosecution. Loss
prevention experts rely on the data supplied in criminal records to determine whether an
applicant is a threat to the company or to the public. Because USMA members rely on this data
to make hiring decisions, it is necessary for USMA to continue offering criminal background
reports to retailers in an expeditious fashion.
RSI
Since its founding in1988, RSI has been dedicated to helping businesses and individuals
maximize their probability of success in making quality hiring and staffing decisions.
RSI is built on a tradition of discretion, accuracy, and un-equaled customer satisfaction. As a
result, RSI has been recognized as an innovator and industry leader with respect to production
methods used in preparation of search information.
Our clients range from human resource and loss prevention departments of national airlines to
global entities to small businesses and individuals. All of our clients share the same objective; to
make decisions based on the most up-to-date and accurate information available. RSI stands
ready to meet their expectations in a professional and expedient manner.
Comments of RSI
The ability of RSI clientele, primarily consisting of the aviation and banking industries, to screen
the fitness for duty of applicants hired for safety sensitive or bonded positions, including a
determination whether an applicant has a criminal history, is essential to public safety. As a
general rule, these employers will spend approximately $3500.00 to recruit, screen and hire one
employee. On average, they will screen eight (8) applicants for every one (1) employee hired.
Because of the high rate of turnover in these industries, and the high demand for personnel, it is
essential that these clients have the ability to screen applicants expeditiously while at the same
time cost-effectively.
RSI's client base depends on RSI to obtain criminal record information on job applicants. There
are several reasons that timely criminal record information is critical to the Aviation and Banking
Industries, and these industries will suffer if they are restricted by the proposed legislation.
What follow are regulations pertaining to the Aviation and Bank industries that detail the
procedures, including the ordering of a criminal record, that must be followed in these industries.
· Federal Aviation Regulations
TITLE 14--AERONAUTICS AND SPACE
CHAPTER I--FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF
TRANSPORTATION (Continued)
PART 107--AIRPORT SECURITY--Table of Contents
Sec. 107.31 Employment history, verification and criminal history records checks.
(a) Scope. On or after January 31, 1996, this section applies to all airport operators; airport
users; individuals currently having unescorted access to a security identification display area
(SIDA) that is identified by Sec. 107.25; all individuals seeking authorization for, or seeking the
authority to authorize others to have, unescorted access to the SIDA; and each airport user and air
carrier making a certification to an airport operator pursuant to paragraph (n) of this section. An
airport user, for the purposes of Sec. 107.31 only, is any person making a certification under this
section other than an air carrier subject to Sec. 108.33.
(b) Employment history investigations required. Except as provided in paragraph (m) of this
section, each airport operator must ensure that no individual is granted authorization for, or is
granted authority to authorize others to have, unescorted access to the SIDA unless the
following requirements are met:
(1) The individual has satisfactorily undergone Part 1 of an employment history investigation.
Part 1 consists of a review of the previous 10 years of employment history and verification of the
5 employment years preceding the date the appropriate investigation is initiated as
provided in paragraph (c) of this section; and
(2) If required by paragraph (c)(5) of this section, the individual has satisfied Part 2 of the
employment history investigation. Part 2 is the process to determine if the individual has a
criminal record. To satisfy Part 2 of the investigation the criminal record check must not
disclose that the individual has been convicted or found not guilty by reason of insanity, in any
jurisdiction, during the 10 years ending on the date of such investigation, of any of the crimes
listed below:
(i) Forgery of certificates, false marking of aircraft, and other aircraft registration violation, 49
U.S.C. 46306;
(ii) Interference with air navigation, 49 U.S.C. 46308;
(iii) Improper transportation of a hazardous material, 49 U.S.C. 46312;
(iv) Aircraft piracy, 49 U.S.C. 46502;
(v) Interference with flightcrew members or flight attendants, 49 U.S.C. 46504;
(vi) Commission of certain crimes aboard aircraft in flight, 49 U.S.C. 46506;
(vii) Carrying a weapon or explosive aboard aircraft, 49 U.S.C. 46505;
(viii) Conveying false information and threats, 49 U.S.C. 46507;
(ix) Aircraft piracy outside the special aircraft jurisdiction of the United States, 49 U.S.C.
46502(b);
(x) Lighting violations involving transporting controlled substances, 49 U.S.C. 46315;
(xi) Unlawful entry into an aircraft or airport area that serves air carriers or foreign air carriers
contrary to established security requirements, 49 U.S.C. 46314;
(xii) Destruction of an aircraft or aircraft facility, 18 U.S.C. 32;
(xiii) Murder;
(xiv) Assault with intent to murder;
(xv) Espionage;
(xvi) Sedition;
(xvii) Kidnaping or hostage taking;
(xviii) Treason;
(xix) Rape or aggravated sexual abuse;
(xx) Unlawful possession, use, sale, distribution, or manufacture of an explosive or weapon;
(xxi) Extortion;
(xxii) Armed robbery;
(xxiii) Distribution of, or intent to distribute, a controlled substance;
(xxiv) Felony arson; or
(xxv) Conspiracy or attempt to commit any of the aforementioned criminal acts.
· Federal Deposit Insurance Act
SEC. 19. PENALTY FOR UNAUTHORIZED PARTICIPATION BY CONVICTED
INDIVIDUAL.
(a) PROHIBITION.--
(1) IN GENERAL.--Except with the prior written consent of the Corporation--
(A) any person who has been convicted of any criminal offense involving dishonesty or a
breach of trust or money laundering, or has agreed to enter into a pretrial diversion or similar
program in connection with a prosecution for such offense, may not--
(i) become, or continue as, an institution-affiliated party with respect to any insured
depository institution;
(ii) own or control, directly or indirectly, any insured depository institution; or
(iii) otherwise participate, directly or indirectly, in the conduct of the affairs of any insured
depository institution; and
(B) any insured depository institution may not permit any person referred to in subparagraph
(A) to engage in any conduct or continue any relationship prohibited under such subparagraph.
(2) Minimum 10-year prohibition period for certain offenses.--
(A) IN GENERAL.--If the offense referred to in paragraph (1)(A) in connection with any
person referred to in such paragraph is--
(i) an offense under--
(I) section 215, 656, 657, 1005, 1006, 1007, 1008, 1014, 1032, 1344, 1517, 1956, or 1957
of title 18, United States Code; or
(II) section 1341 or 1343 of such title which affects any financial institution (as defined in
section 20 of such title); or
(ii) the offense of conspiring to commit any such offense,
the Corporation may not consent to any exception to the application of paragraph (1) to such
person during the 10-year period beginning on the date the conviction or the agreement of the
person becomes final.
Summary
Prosecution and defense attorneys are usually located near the courthouse. Those with a true need
for the information can still access it at the courthouse.
Clearly, the trucking, airline, retail and banking industries have a true need for criminal record
information and may not be physically present to access it at the courthouse.
Further, any legitimate need for electronic access to criminal case information is outweighed by
safety and security concerns.
It is in fact the safety and security concerns of the mass public that necessitate the electronic
availability of criminal information.
The judiciary should not suppress any information that might alter the decision of the entity
receiving the information. For example, it is contemplated in option 2 that "plea
agreements…would be restricted to parties, counsel, essential court employees, and the judge."
This contemplates daycare facilities hiring care givers that have pled a pedophile charge down to
a misdemeanor charge of "misconduct"; driving on the highway with commercial drivers who
were hired because their DUI's were pled to careless driving and banks hiring controllers because
their embezzlement charges have been pled down to "prayer for Judgment 1st Offense."
There are, of course, more examples, but the fact is that employers who are hiring individuals
who will be placed in a position of trust should only be denied information that is clearly
unrelated to the decision making process.
No. 200
1/26/01
Sharon Nelson, Esq.
Sensei Enterprises
Fairfax, VA
Electronic Filing:
Using Technology to Balance the Competing Rights of Public Access and Privacy
By Sharon D. Nelson, Esq. and John W. Simek
In the maelstrom swirling around the right of public access v. privacy debate, legal and
philosophical considerations have been paramount. Practical considerations have received little
attention.
The authors are the designers of the electronic filing system in Fairfax County Circuit Court,
Virginia. At the outset, our philosophical position is this: the polar positions (full public access
and NO public access) are both unsustainable. The right of public access is well documented, as
is the mandate to protect certain individual privacy rights. Two competing interests must be
balanced as technology both assists us in expanding the right of public access and bedevils us by
opening a Pandora's box where privacy rights are concerned. The notion that we must balance
these two interests has achieved fairly mainstream acceptance. The devil, as always, is in the
details.
Many possibilities for restricting access to private information have been suggested, largely
without regard to whether they are practical. This article is an attempt to look at some of the pros
and cons of the various methods of restricting access to court records.
Redaction
Things that might be redacted, by general agreement, include such elements as phone numbers,
addresses, social security numbers, and credit card numbers, among many others. But who would
perform the redaction?
· Court clerks? This is a nightmare proposition. The burden of redacting would far outweigh any
benefit of electronic filing. This would be a crushing responsibility. The clerks would resist it,
understandably, and there are serious liability issues if private information was overlooked in the
process.
· Attorneys? Apparently, this is also a nightmare proposition. We note with humor that the many
judges we have spoken with are in complete agreement that attorneys do a terrible job of
redacting documents in the paper world. The judges seem to be in harmony when they state that
electronic redaction by attorneys would be a disaster of Titanic proportions. Additionally,
attorneys would resist being responsible for redaction because of the enormous liability that
might attach if they failed to keep private information off the Internet by neglecting to redact.
· By the system itself, perhaps using a legal XML application? This seems the most practical
solution over time, though it has limitations.
1. First, what it is XML? It is Extensible Markup Language, effectively a tagging system (similar
to HTML) that is (unlike HTML) not restricted to 160 tags, but infinitely expandable. One subset
of XML is legal XML, which is not yet ready for "prime time" but shows great promise for the
future. Standards are still being developed. In their absence, there are various "flavors" of XML -
without a standard to govern, the implementation of software employing multiple flavors will
result in a Tower of Babel which is not in the interest of the courts. If legal XML becomes a
standard, perhaps with the sub-standard particular to court documents, we will have consistent
tags for many elements - plaintiff, defendant, address, phone number, credit cards number, etc.
Software could then be written which would automatically redact elements not meant for public
view. The inherent limitation? If private information is not defined by a tag (e.g., a narrative of
medical problems), it cannot be redacted systematically. Ideally, the courts would standardize
the elements to be redacted but they would still face the problem of private information which is
not easily tagged.
2. Could a non-XML application currently be written to redact systematically? Sure, but it faces
the same problems. Different applications written by different programmers will also produce a
Tower of Babel; in fact it would be worse in the absence of anything remotely like technical
standards. The same inherent limitations as to narrative private information would apply.
Finally, how hard is redaction technically? There is already a plug-in for Adobe Acrobat (called
Redax) which permits redaction when generating the PDF (Portable Document Format)
documents required by most court electronic filing systems. However, as stated above, redaction
is labor intensive and beset by liability problems if done by clerks or attorneys. If done by a
software application (and it's worth noting that there is NO comprehensive legal redaction
application currently), it is limited to redaction of definable elements.
The authors believe that redaction is currently an impractical solution or, at best, only a partial
solution for redacting particular quantifiable elements.
Sealing
Sealing documents is technically simple, economical and very reliable, which makes it an
attractive option. It is the equivalent of flipping a switch. Now the question is: How and what do
you intend to seal?
· By kind of case? Some states have already passed legislation sealing certain kinds of cases from
public view on the Internet. Common examples are cases involving divorce, adoption, juveniles,
criminal law, and social security disability. A human being (the clerk or the filing attorney) could
do the sealing, but it probably makes more sense to have the nature of the case identified when
the case is filed so that the case is automatically sealed by the ECF system. It is relatively easy for
the system itself to identify cases which should not be open to public access by use of a "cover
sheet" filed with the initial pleading. It is probably preferable to let the system make the sealing
determination from the information submitted as opposed to relying on counsel or a clerk to
actively identify the case as one which should be sealed. The human error factor is greatly
reduced, which better shields the private information and protects attorneys and courts from
possible liability resulting from errors.
· By document - requires an "electronic holding area" while status is decided. Even if specific
kinds of cases are automatically sealed, there will still be a needed for "document by document"
determination of whether or not to seal. In a contract case, for example, a party may wish to seal
a particular document that contains trade secrets. If the case itself is accessible via the Internet,
any filed document would accessible, unless a document which an attorney wished to seal were
placed in "an electronic holding area" (viewable only by counsel of record and the court) until a
determination is made whether the document should be sealed. If the sealing decision is not
predominantly made by sealing certain kinds of cases, and document by document sealing is
employed, the burden on the court system would be enormous. Documents filed in courthouses
today are, as the U.S. Supreme Court has noted, "practically obscure." They are not obscure when
placed on the Internet, and therefore the requests to seal will undoubtedly skyrocket. A system
which employs only document by document sealing is therefore probably untenable.
Charging for access
This will certainly limit access very effectively, but it also makes a line between the "haves" and
"have-nots." Large firms may have no problem paying the current 7 cents a page required by the
federal system, but solo practitioners and smaller firms may find this a serious burden,
particularly in cases where the costs cannot be passed on to the client. The inequity becomes even
worse when pro se litigants are factored into the equation. Even if there are free terminals at the
courthouse, this does not adequately address the needs of the disabled.
Charging for access may also deter those who would data mine court records if access were free.
Looking for those who have become recently disabled to sell wheelchairs, as an example, would
now be a much more expensive proposition and probably not worth it to the average data miner.
For large scale data miners, the cost may not be prohibitive if the return is great enough.
Logging access
It is possible to log access to "track who touches which records." This would allow the system to
be programmed to automatically stop data miners from touching more than a certain number of
records, perhaps by automatically terminating a session after a certain number of records have
been accessed. However, it is perfectly plausible to write a software application which would
automatically begin a new session after the old one was terminated. Unfortunately, in the
electronic world, there are a lot of ways to make an end run.
Logging is not a particularly difficult technological task, but it has hazards which probably render
it impractical and undesirable. If you ask visitors to "sign in" in any manner, they will feel as
though Big Brother is watching them. The best privacy practices, which will probably be codified
into law very shortly, require that web site operators tell visitors if their activities are being
monitored and data collected. Any sort of tracking will probably cause a hue and cry as being
"chilling" and intrusive.
If visitors have to register in some formal manner before they can use the system, this becomes
unwieldy to the courts if they actually have to perform some sort of verification that users are
whom they say they are. Remember that it is a relatively simple matter to "spoof" one's electronic
identity.
While it is technically possible to require that only fixed IP (Internet Protocol) addresses be used
when visiting the site, which helps somewhat to verify identity, now the system is no longer open
since many people do not have access to a fixed IP address.
Restricting access
Again, restricting access is not hard technically, but it comes with baggage of its own. What kind
of baggage depends on the sort of restrictions employed. Are you restricting:
· To parties/counsel of record/court? This effectively means that all documents are sealed from
public electronic access. This is a polar position, and one which does not seem consistent with
the right of public access. However, the argument is that the traditional right to view court
documents would exist at the courthouse, so no current right has been taken away from the
public. The counter argument, however, is that the advances in technology should be used to
enhance the right to public access, subject to certain privacy rights. It should also be noted that,
while it is simple to grant attorneys of record access to their own cases (or to all the records of a
court, if desired) by use of their bar numbers or other identifier, if parties, including pro se filers,
are to be allowed access to their own cases, the system must be able to identify them, requiring
an additional and potentially very burdensome layer of security.
· To discrete number of records? This was discussed above, and the same considerations apply. It
may inhibit data mining, but those who want court data are generally smart enough to write
applications that will defeat the system. Unfortunately, this also impacts people with a valid
reason for accessing many records. What about a reporter doing a story on traffic statistics who
wants to comb through cases to compile those statistics? Advocates of this kind of restriction
sometimes favor making "exceptions for cause." However, this would require some sort of
system with human intervention, placing an additional burden on the courts. Who would
determine the criteria for these exceptions? How would the use of granted exceptions be
implemented/monitored?
· By kind of document? A court might just show original pleadings and court orders, for instance.
This is certainly feasible technically, but the restriction on access would now be significant, as
most case documents would now be closed from public electronic view. Also, it doesn't solve the
privacy issues, because there is a wealth of private information in original pleadings and court
orders. This approach only reduces the size of the problem, and at the expense of granting the
maximum possible access.
· By areas of law? See discussion under the "Sealing" topic above.
· By motion of party? Proponents of this approach offer two flavors:
1. In the first, a case can be sealed from public access by motion of either side and the sealing is
automatic based on the area of law. This could bring a wide disparity of results where more
sophisticated counsel automatically request sealing all the time. It is difficult to understand why
cases in the given area of law would not simply be sealed as a matter of law.
2. In the second, a party may file a motion asking a case to be sealed and a judge will make a
determination, exactly as is done now, but with the added consideration of the global exposure of
the Internet as a possible reason to permit the sealing. Judges tend to recoil from this as placing a
new and possibly very onerous burden on their already crowded dockets.
No doubt courts will struggle for some years to come to terms with the implications of placing
court records on the Internet. Just to throw one more wrench into this chaos, how are courts
going to accommodate the disabled who cannot get to the courthouse and look at records?
Technology now offers a solution to that problem. Any public access/privacy balance is, by law,
going to have to address the rights of the disabled.
Having studied, lectured, and written about this subject for the last two years, the authors have
reached only tentative conclusions, which are subject to constant refinement as technology
evolves and new legal issues are raised. For sheer ease of implementation, it appears to be easiest
(where possible) to identify areas of law where privacy rights outweigh the right of public access
and systematically "seal" the documents. In all other areas, the current right to request that
individual documents be sealed would be maintained, but with the additional consideration by
the court of the implication of global access. It is worth noting, as the courts struggle with this,
that there is a fairly clear though often overlooked line between the right of access to court
records involving the process of government and the right of access to an individual's private
records. While we certainly want sunshine in government, this does not necessarily demand that
the privacy of an individual's life be sacrificed to achieve this goal. Public embarrassment over
dirty linen aired in public is often cited as an undesirable result of open access, but this is the
very least of our problems. Identity theft is escalating, as is the proliferation of databases whose
content is used to annoy us with sales phone calls and e-mail, target us for scams, and for almost
every other nefarious purpose that one could imagine.
No matter which decision is made, it is likely there will be some trampling on both the right of
public access and privacy rights as we struggle to balance both. The ultimate determination of
how to proceed will undoubtedly be established by case law. Unfortunately, the technology is
here and case law guidance is not. The older cases, while instructive, were decided in a world
without a ubiquitous Internet. As fast as we are now moving on this electronic Autobahn, the
duty of the courts is to thoughtfully shape policies that sustain our open government aspirations
while simultaneously limiting unwarranted invasions of personal privacy. It is not an easy
challenge.
No. 201
1/26/01
Mary Jo Obee
Chief Deputy Clerk
US Bankruptcy Court
Western District of Oklahoma
Oklahoma City, OK
(Chart not included)
I will address four points:
1. The interests of the judiciary in electronic access issues and the appropriate scope of
the judiciary's actions in this area,
2. The privacy and security implications of electronic access,
3. Identification of some of the various alternative types of electronic access, and
the pros and cons of each, and
4. Finally, comments on the judiciary's current plan providing electronic access.
I would be honored to respond to any questions and would be interested in participating in a
public hearing.
1. Is it appropriate for the judiciary to establish policy as regards the maintenance of and
access to electronic records and if so, what is the appropriate scope of judicial branch action in
this area?
The judiciary has various interests in establishing policy as regards maintenance of and access to
its electronic records. First, the judiciary has an interest in establishing policy as regards subjects
concerning its operations. Its ability and history of establishing policy in this area can be seen in
the various federal court rules of procedure speaking to form, content and filing requirements as
well as in some statutes speaking to the jurisdiction of the courts. In addition to its own
operation interests, the judiciary has interests in setting policies regarding the scope of its
activities with others, including the authority to establish policy as regards access to records for
various causes. Its ability and history of establishing policy in the area of access can be seen in
the various federal court rules and statutes speaking to limitation of access to information in
criminal cases and development of the reasons for allowance of sealing of records.
Four areas of judiciary interests arise in providing access to information it holds. Probably the
major interest of the judiciary in providing access is operational, to obtain the proper and most
efficient administration of cases to best use limited judicial resources. Second, the judiciary has
an interest in providing access which leads to increasing public trust in the system. For example,
the judiciary receives information the release of which could help stop physical harms deriving
from both continuing criminal and tort activities and continuing monetary harms deriving from
fraud. Providing access to court information in these areas enhances public perception of the
judiciary and protects the public. Third, the judiciary has an interest in maintaining and
enhancing public acceptance and compliance with the laws which is served by providing levels
of access necessary for the public to evaluate the operations of various statutes and the judiciary.
Finally, the judiciary has an interest in allowing the public to receive equal protection of the law
by protecting the personal information of both those in law enforcement and those seeking
redress through the courts. All of these interests are present in the issues surrounding provision
of access to electronic records held by the judiciary.
As regards the operating interest of the judiciary, it is the experience of the court for which I
work that provision of access to electronic information greatly affects operations in several ways.
First, provision of electronic records causes a transition in the nature of the work of the clerk's
office and chambers. Second, as the nature of the work changes the abilities of staff must change
and job qualifications increase. This leads to high staff turnovers while the transition occurs.
Third, the increase in staff qualifications causes an increase in staffing costs. Finally, while
electronic documents take up less physical space than paper documents, thus lowering space
rents, the equipment and programs necessary to create, store and view electronic documents cost
a great deal of money to initiate as well as a great deal of money in continuing costs in upgrading
equipment and rewriting programs as technology constantly changes.
The court I work for has six years of experience with full case electronic records. After
docketing and noticing, the greatest work of a bankruptcy court clerk's office is providing access
to case information, whether that access involves answering questions or providing documents
for review. The graph attached shows the number of processing requests for information
received from the public. The graph includes requests from phone calls, RACER, PACER,
VCIS, search requests received in the mail and requests received in person at the front counter.
The court concerned began offering remote access to electronic records in 1998. The graph
shows how the convergence of a large electronic database with both easy and fast electronic
access greatly increases the number of requests for case information which a court can receive
and process. In other words, as the courts acquire larger electronic document databases,
electronic access will increase thereby changing the work of the court.
While the clerk's office was providing more information, chambers and courtroom operations
changed. What we have found appears very self evident, if access is easy, more access occurs.
When attorneys access the case files more often, chambers' operations is benefitted through
having more controversies settle and hearings are more efficient when topics are more focused.
On the flip side, increased public access through electronic records causes bankruptcy judges to
receive a great deal more letters and informal pleadings from pro se creditors and people
complaining of identity theft. In both instances, the correspondence are often treated as
pleadings and frequently set for hearings where parties are not represented by counsel. This
increase in public participation assists in the judiciaries' interest in improving public perceptions
of the judiciary and the laws and improving the availability of redress through the courts, but it
has impacts on the operational interests of the courts.
The judiciary has decisions to make, which are within its policy making authority, related to both
its own internal operational interests and its interests in public access. These decisions include
issues regarding the content of electronic documents and which of various competing needs are
to be met by provision of access to the information contained in them. Substantive information
presented in these documents is prescribed by federal rules and official forms promulgated by the
judiciary. The judiciary therefore has the power to change what documents are filed with the
court and what specific, substantive information is in the filed documents. Amending the rules
and forms, areas solely controlled by the judiciary, can thus greatly affect what is in the court
public records without any statutory changes. For the sensitive information which must be filed
with the courts, alterations in access levels can also be effected by the courts through provision of
other reasons for sealing records and excepting some classes of information from public access.
Another choice involves determining when to provide access to its electronic records. At the
least, the judiciary should slow down provision of access to electronic records over the Internet
until it has further studied the ramifications of providing such access upon its operations and
developed a plan to accommodate the changes in operations, staffing and budget components
which will follow from such access. Studies of operations and budgets of those courts already
offering Internet and other remote access could be developed and run in a relatively short time
frame in relation to the long term changes that electronic access will cause. In addition, the
judiciary should study and define what is meant by public record. It can establish other, specific
causes for sealing records and policies for limiting access to classes of records or information, all
of which means it currently uses to limit access.
The scope of judicial branch actions thus includes slowing or halting current Internet access and
conducting several studies. One study should involve determining the effect of access levels on
its operations. Another study should define the legitimate needs of public access and determine
how the interrelated requirements of access should lead to appropriate rules changes.
2. What are the privacy and security implications, to the various parties involved in federal
litigation, of electronic access to information held by the courts?
All individuals drawn before the courts have privacy rights, which rights vary with the type of
information at issue. To be balanced in opposition to these privacy rights, are the rights of the
public to assess the efficacy of the laws and evaluate government bodies including the courts.
How a proper balance is determined and provided in a fashion which does not overly burden the
courts or make the court a censor is the question before the judiciary.
The privacy concerns of parties in bankruptcy cases with release of personal information on the
Internet include greatly increased probabilities of:
1. Physical harms: Stalkers causing battery or even murder to individuals they have located
through the Internet;
2. Psychologic harms: Stalkers harassing individuals or companies they have identified and
located through the Internet;
3. Theft of money: Lenders defrauded of millions of $ annually through use of stolen
identities, obtained from Internet sources, used to obtain loans and purchase goods;
4. Theft of identity: Individuals have name, social security number and other personal
information used without their knowledge resulting in theft of $ from accounts and requiring
subsequent changes in lifestyles, loss of jobs and housing and sometimes inappropriate
imprisonment, and;
5. Loss of privacy: A fundamental right necessary for liberty which is lost when personal
information is obtained from public sources and compiled into profiles by marketers and others,
resulting in unwanted solicitations and public knowledge of private facts including medical and
religious information.
While the probability is low that any of these harms may befall any one individual or entity
identified through access to court records over the Internet, the probability is very high that the
database as a whole will be used to commit these harms. Therefore, solutions to these concerns
are less amenable to being solved on a case by case basis by the trial judge, as has been the
practice of the courts under paper records. These concerns will have to be solved in terms of
limiting access system wide to classes of information or documents.
In the context of bankruptcy filings, the case number, county and state of filing, chapter,
quantitative statistical information from the cover sheet, name and other information concerning
debtor's attorney, name and other information concerning the trustee, name of the judge, dates,
time and place of the meeting and hearings, discharge, conversion, dismissal and closing dates,
listing of docket entries and case numbers and filing districts for other bankruptcy cases filed by
the same debtor can remain open for unlimited access. Access by the general public to pleadings
would need to exclude the petition, schedules, lists and statements of affairs. All pleadings
subsequent to the case opening documents would not include the debtor's name in the caption, or
any identifying numbers such as the social security number or account numbers. Pleadings
identifying sensitive information, such as medical creditors, would have to be redacted or
excluded from access. While this type of differentiated access is difficult to achieve with paper
records, it is viable and fairly easy with electronic records.
The security concerns regarding electronic access to court information over the Internet are great.
They include issues of data accuracy, upon collection and over time, and database integrity
issues, including protection of records from corruption and means to identify and correct
corrupted records.
In terms of data accuracy, a large problem with the collection and public dissemination of social
security numbers is evident at bankruptcy clerk's offices. We are now receiving calls on a
weekly basis complaining that cases contain social security numbers which are incorrect.
Dissemination of incorrect social security numbers results in people losing mortgage and
automobile loans and loss of employment to the true holder of the social security number listed
incorrectly on a case file. In the last four weeks alone, this court has received three claims of
these types of harms from incorrect social security numbers in our case files.
The numbers in our records are incorrect either through typographic errors of the clerk's office or
debtor's attorney, typographic errors of debtor when supplying the information to their attorney
or through fraudulent provision of an incorrect number by a debtor. While admittedly anecdotal
evidence of the existence of these harms, the fact is these complaints are increasing throughout
the country and occur due to the dissemination of this information from the court. This
information should probably not be released to the general public, including commercial
information vendors, or at least some means of verification and authentication should be put into
place before it is. Further, there needs to be a mechanism to request changes to social security
numbers to correct errors and to advise those accessing a case that the social security number was
questioned or changed. If the social security number continues to be a part of the petition in
bankruptcy, it would be prudent if social security number checks be performed by trustees within
two weeks of the meeting of creditors to catch errors and fraud. An increase in trustee fees
would be necessary to pay for this increased duty.
In terms of protection of database integrity, provision of limited levels of access allows a means
to greatly secure the records from those most likely to hack into the system. Of all the various
types of users of Internet access, casual, voyeuristic and commercial users are the most likely to
steal information or defile records. The risks of harm to the database from those involved in
cases is lower as they have a stake in the system. Due to their smaller numbers relative to that of
general public users, stronger security measures for a greater number of documents can
realistically be put into place to protect them from any damage from parties involved in cases.
Security measures for differentiated access levels requires planning and testing to assure that the
access level cannot be breached. Multiple levels of security, authentication and tracking
capabilities, and means to assure database integrity by identification of corrupted files, and what
was changed, are major issues to be explored. Encryption of documents should be in place also.
In addition, as each level of higher security is added to larger classes of documents, the system
will provide slower and more cumbersome access. At some point, access will take so long that
those we wish to use the system will no longer find it feasible to do so.
In summary, privacy concerns of those involved in federal litigation are real and deserve to be
addressed. Differentiated levels of access provide a workable solution to both the privacy
concerns of these parties, public needs to view some records and the judiciary's needs to find
workable solutions to the security problems of providing records over the Internet.
3.Please identify various alternative means of providing electronic access and discuss their
respective pros and cons.
Under current technology, there are two means of providing electronic access to court records.
One method is to provide dial in access similar to how WESTLAW and Lexis have provided
access for years. A second means of providing electronic access is through the Internet.
In addition, alternative policies are available to the judiciary as regards how to grant access to the
public through either of these means. These policies include:
Providing no electronic access;
Providing unlimited electronic access with no required password/logon ID
Providing unlimited access with required password/logon ID
Providing differentiated access:
Named parties/Govt entities require password/logon ID and authentication
Everyone else limited access with no password/logon ID
Providing differentiated time limited access:
Named parties/govt entities - forever
everyone else 10 years per FCRA
Providing differentiated elec access:
Named parties/govt entity password/logon ID , anytime, forever
everyone else no password/ logon, time of day restriction, 10 years.
Access over the Internet is faster than dial in access and, after initial setup, is probably easier to
maintain. On the other hand, dial in access allows provision of better security and means to
identify and authenticate users. The use of differentiated access levels over the Internet allows
the capture of part of the good of each method, the speed of the Internet and the higher security
measures used in dial in systems.
To differentiate access, would require a table of access classes. Such a table would contain lists
of personal information, and/or specific types of documents listed, with types of access required
to view indicated as an element. Password and logon Ids would need to be designed to contain
information on these access classes.
4. Please comment on the judiciary's plan to provide electronic access.
I am not sure what the judiciary's plan for provision of electronic access is. It appears that the
judiciary plans to provide unlimited access to court records, particularly bankruptcy records,
upon presentation of a password/logon and payment of a fee.
Providing proper levels of electronic access will be a great boon to the judiciary, those involved
in cases and the public. Electronic access to parties in a case greatly improves case
administration. Electronic access for the public will aid changes to laws and improve the public
view of the judiciary.
Achieving these benefits with unlimited public access to those documents as currently filed will
be difficult. It will be costly and difficult to design and implement a useable, unlimited access
system capable of handling the large volume of access requests that will come with such a
system. The larger the number of pleadings provided access to, and the larger the size of those
pleadings, the more difficult providing unlimited access will be. As you can see from the
attached graph, the number of "hits" on an unadvertised, relatively slow dial in electronic record
system for a medium size bankruptcy court is large, approximately 275,000 in 2000.
Extrapolating these rates of "hits" to the entire volume of documents held by all the federal
courts on a public Internet based system results in a huge number of "hits" to any such judiciary
system. Therefore, the judiciary must limit both access levels, and what is filed, in order for
electronic access to truly reach its potential under the limited resources of the judiciary and
technological limitations.
Charging fees for access will help defray some of the cost of the system and may help to
decrease the number of attempts to access the system by discouraging those who do not have
adequate funds from seeking access. However, the judiciary must be cautious in assessing fees
for access. Fees deter use by those who cannot pass the cost on to others. Fees do not deter use
by those who can pass on the charges to others, such as commercial users. It is the experience of
this court that fees stop access by those parties we most want using the system. The entities the
judiciary most wants using the system on a daily, heavy basis are named parties in cases, and
their attorneys. These entities have either no means of passing on the costs of accessing the
system or very limited means of passing on those costs. If these parties are discouraged from
using electronic access due to the fees, the judiciary receives very little benefit to its own
operations from all the work and costs of purchasing the infrastructure and of designing and
maintaining the system. If the judiciary is not careful in designing any system of access and fees,
fee paying commercial users will clog the system and use all available bandwidth.
As a final consideration, the judiciary should promulgate access rules for the same types of
information which are consistent between the various courts. In other words, the same types of
information, when held by each type of federal court, should be given the same protections and
access levels to the extent practical. Information in bankruptcy cases which is similar to
information and documents in criminal cases should be accorded the same protections and
privacy it would receive if a criminal case had been filed. Information in bankruptcy cases and
adversary proceedings similar to that found in civil cases should be accorded the same types of
privacy and access it would have if the matter was before a district judge.
No. 202
1/26/01
Princeton, NJ
Please accept the following comments on the privacy and security implications of providing
electronic access to court case files. For the reasons set forth below, I urge the judiciary to
preserve individual privacy by carefully considering and evaluating different kinds of court
documents before releasing them online to the public. These comments pertain only to civil
cases.
I. Putting All Records Online Will Have A Chilling Effect
The difficulty with putting court records online is that although it would preserve the principle
that judicial proceedings should be conducted in public, there is a substantial risk that
over-publication will have a chilling effect. The courts have always been concerned with
openness, fairness, perception and confidence in governmental processes. See Richmond
Newspapers v. Virginia, 448 U.S. 555 (1980). At the same time, trust and confidence are
interests shared by litigants and the bench. The judiciary should weigh and consider the salutary
effects of confidentiality and chilling effects of disclosure.
Very few "facts" are proved to a conclusion in the American system. Only about 15% of lawsuits
actually proceed to trial. This means that most of the "facts" recited in pleadings are not tested.
If they are disseminated over the Internet, however, and especially if they are "newsworthy,"
there are no guarantees whatever that any of the information on the Internet will be reliable. This
will undermine the perception of fairness and trust in the legal system.
Part of the problem is the nature of the American adversary system. The primary objective of the
adversary system is not so much to seek material truth as to resolve disputes in a way that will be
acceptable to the parties and to society. If the search for truth were supreme, privileges would
not be recognized. Our procedures are intended to maintain the appearance of fairness, but they
do not always succeed. Unfortunately, many Americans hold distorted and negative views of the
system.
To disclose all court records on the Internet will have a chilling effect. It may not be possible to
predict just how litigants (or prospective litigants) will react to the prospect of worldwide
publication, but there have been two good examples in the last year of the chilling effect of
disclosure. The first is the harm done to public health and to the health care services industry
when patients fear that their medical records will be published on the Internet. The second is the
uproar over the 2000 census.
The chilling effect has harmed public health and the health care services industry by skewing
health data. One out of every six Americans now engages in some form of privacy-protective
behavior. These behaviors include lying to doctors, asking doctors to lie to insurance companies,
asking doctors to keep two sets of records, paying out-of-pocket for services (especially
psychiatric services) that are covered by insurance, and, in the worst cases, refusing to seek
treatment at all, lest the patient's health data should be misused. The most poignant and obvious
example of harm is untreated HIV infection. See "Confidentiality of Patient Records," testimony
before the House Subcommittee on Health, February 17, 2000, quoting a survey by the California
Health Care Foundation. (Available at www.healthprivacy.org/resources.)
During the census uproar, some Americans encouraged others not to complete their census
forms, lest the information they disclose to the government should be redisclosed for unforeseen
purposes. Without good census data, the political system is harmed and government cannot
provide appropriate services.
When people lose control over information about themselves, they change their behavior in ways
that may harm society. The judiciary has recognized this; there is ample precedent for limiting
disclosure when a chilling effect looms over litigants. The subpoena power, for example, can
easily be used to destroy privacy and confidentiality, hence there are clearly defined restrictions
and limitations on its use. Privileges are recognized where four conditions are met: 1)
communications originates in confidence; 2) confidentiality is essential for the relationship; 3)
the relationship is fostered in the community; 4) injury from disclosure outweighs the benefit.
These conditions apply to the Internet. See also Douglas Oil v. Petrol Stops Northwest, 441 U.S.
211, 219 (1979) (grand jury secrecy is intended to protect interests of an innocent accused).
Accordingly, the judiciary should be cautious about publishing all court documents on the
Internet. Electronic records have attributes that fundamentally change the premises for
categorizing information as "public." These attributes include the amplification effect and the
mosaic effect. In the American adversary system, these effects can seriously undermine the
perception of fairness and trust in the court system.
The amplification effect comes from the permanence, persuasiveness and procreative power of
electronic information. Data online can be stored much longer than paper, and computerized
data carry with them a weight of authority similar to the power that was once conferred upon
parchment by illiterate masses. See, e.g., Justice, Writing and Rebellion (1994). Once disclosed,
an electronic record can be widely disseminated, far beyond the scope of the intended audience.
One consequences of this is a total loss of control over errors. If the New York Times makes an
error, chances are good that its published correction will reach the same audience that read the
first erroneous report. If an electronic error is republished, however, the opportunity for effective
correction may be lost.
The mosaic effect became known after an enterprising college student compiled, from many
different public sources, enough information to build an atom bomb. The United States Supreme
Court recognized the perils of widespread incremental disclosure in United States Department of
Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). This effect
appears to be one of the most persuasive arguments to support individual privacy. See, e.g., U.S.
Department of Defense v. F.L.R.A., 114 S.Ct. 1006 (1994) (disclosure of names and home
addresses of Federal employees would be a clearly unwarranted invasion of personal privacy
under FOIA; privacy interest does not dissolve simply because the information may be available
to the public in some other form, such as a telephone directory or a voter list); U.S. Dep't of State
v. Ray, 502 U.S. 164, 177 (1991) (disclosure of a list of names is not inherently and always a
threat to privacy, but "depends upon the characteristic(s) revealed by virtue of being on the
particular list, and the consequences likely to ensue"); Illinois v. Rodriguez, 497 U.S. 177,
181-82 (1990) (the fact that information has been disclosed to one individual does not mean that
it can be freely disclosed to another. A guest in somebody's home cannot open the door to the
police to conduct a search.).
Accordingly, the judiciary should resist the temptation to rely on oversimplified arguments that
once a document can be found in the public domain it can no longer be considered private.
Instead, the courts should reconsider the reasons for making court records public, and draw a
distinction among the kinds of documents that should be made available online.
II. The Judiciary Should Not Rely on Outdated Analytical Models
Popular notions about what should be considered "public" and "private" are largely the product
of analytical models that are outdated. For example, back in the days before direct marketing and
the Internet, the fear of Big Brother was a fear of big government. Consumers did not worry that
private companies would compile dossiers about their spending habits, not to mention other, less
benevolent characteristics, like medical histories, family history, legal disputes, etc.
Two analytical models have historically dominated the analysis of privacy rights as they relate to
public access to governmental information. The first, public sector versus private sector, sets up
government against private enterprise. The second, balancing-of-interests approach, dominates
the law of informational privacy. The public sector versus private sector dichotomy has lured
many jurists and scholars toward a bright-line approach, in which disclosures made in the public
sector for any purpose can be redisclosed for every purpose. This is no longer appropriate. See
Helen Nissenbaum, "Toward an Approach to Privacy in Public," 7 Ethics & Behavior 207
(1997). One obvious problem with such an approach is that bad data can be reproduced
repeatedly.
Under the balancing-of-interests approach, individual privacy interests are too weak to withstand
market forces and the imperatives of efficiency and "newsworthiness." See Regan, Legislating
Privacy (1995). In my home state of New Jersey, for example, an individual's claim to
informational privacy must be weighed against other competing interests. It loses. See, e.g.,
Home News v. State Dep't of Health, 144 N.J. 446 (1996); Higg-A-Rella, Inc. v. County of
Essex, 141 N.J. 35 (1995); Southern New Jersey Newspapers v. Twp. of Mt. Laurel, 141 N.J. 56
(1995); South Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478 (1991); Techniscan v.
Passaic Valley Water Comm'n, 113 N.J. 233 (1988); Loigman v. Kimmelman, 102 N.J. 98, 104
(1986); Nero v. Hyland, 76 N.J. 213, 222 (1978).
Traditionally, documents that make it through the courthouse door become part of the public
record and open to scrutiny. But this tradition was never intended for the purpose of
broadcasting details about the litigants. Government records are made available to the public so
that citizens can make political decisions, to instill confidence in the system, to make the
government accountable, and to facilitate business, personal and legal affairs. See Robert
Gellman, "Public Records: Access, Privacy and Public Policy," Government Information
Quarterly, vol. 12 no. 4, at 391-426.
Civil cases are filed because litigants have failed to reach a private compromise. This fact does
not transform the litigants' pleadings, or evidence submitted with motion practice, into a
commodity that is public for any and all purposes. Inaccuracies spawn statistics and perceptions
that are incorrect. If the records that are considered public on paper are published on the Internet,
there is a significant risk that the public will lose confidence in the court system.
III. Limit the Information That Can Be Sold
Online court records are a mother lode of information with commercial value. The judiciary has
been wary of discovery abuse for commercial gain (or competitive advantage), and its concerns
should extend to other aspects of administering justice. If court files go online, will litigants be
able to make money for themselves by selling information about each other? Will state
governments make money for themselves by selling information about litigants?
"Litigants do not give up their privacy rights simply because they have walked, voluntarily or
involuntarily, through the courthouse door. ... The mere payment of a filing fee entitles a
plaintiff to compel production of intensely personal and confidential information, such as
medical records, marital information, religious documents, financial records and even trade
secrets or intellectual property. The defendant of course can respond in kind. The loss of privacy
through litigation is compounded when the information is disclosed to the media, competitors,
political adversaries and even members of the public." Arthur R. Miller, "Confidentiality,
Protective Orders, and Public Access to the Courts," 105 Harvard L. Rev. 427 (1991).
Many private organizations across the country are already putting government records online and
then, of course, selling them. The opportunity to generate revenue has not been lost on
government agencies. Some, like motor vehicle departments, have sparked protests for
disclosing the "public" records in their files for purposes unrelated to their mission statements.
Electronic filings and other aspects of courthouse computerization will open new vistas for
disclosure. News media can review allegations to determine the most "newsworthy" complaints,
without the inconvenience of entering the courthouse itself, and disputes can be broadcast to
wide audiences at little expense. Court records are already purchased and published by private
organizations like credit bureaus. Publishers like West and Gann already make the most of
public records.
The judiciary cannot control profiteers once they obtain information for secondary or tertiary
subsequent publication, and obviously it will not be possible to impose complicated canons of
restraint on the news media. There are injuries of expression for which "more speech" is not the
remedy. The cure in this case is prevention. The judiciary should reconsider the definition of
"public" for the purposes of publishing court records on the Internet.
IV. Conclusion
The Privacy Protection Study Commission long ago saw that "the real danger is the gradual
erosion of individual liberties through the automation, integration and interconnection of many
small, separate record-keeping systems, each of which alone may seem innocuous, even
benevolent, and wholly justifiable." Privacy Protection Study Commission, Personal Privacy in
an Information Society, U.S. Govt. Printing Office, Washington DC (1977).
I respectfully urge the judiciary to limit access to sensitive information in court files, and
carefully to consider the types of records that should be considered public for purposes of
disclosure on the Internet.
No. 203
1/26/01
Lewis Bellardo
National Archives and Records Administration
College Park, MD
Thank you for the opportunity to provide comments on the Federal judiciary proposal to provide
public access to case file information via the Internet.
We have reviewed the different policy alternatives discussed in your request for comments. Each
option is valid and workable from a records management perspective. We do recommend that a
time be specified for vacating the seal on material included as part of case files that are scheduled
for permanent retention.
We would be happy to provide you with any further information or assistance that might be
useful to you in resolving the issues involved with privacy and public access to electronic case
files.
No. 204
1/26/01
Richard Gard
American Court and Commercial Newspapers
Atlanta, GA
I write you on behalf of American Court and Commercial Newspapers, an association of legal
and business newspapers in communities across the country.
For generations, our member newspapers have kept business people, professionals, public
officials and members of the general public apprized of important, useful information maintained
on the official court record. Every day, we serve in the great American tradition of an
independent press keeping citizens informed of the business of the courts. Ours is an enterprise
as old as the republic itself and never more vital than in the present Information Age. As keepers
of that heritage and as newspaper publishers uniquely familiar with the public-record information
in question, we urge the Courts to preserve the openness, availability and completeness of public
records, no matter the medium of their storage.
1. Don't imbue electrons with more mystique than they deserve.
As the Committee's request for comment notes, much personal information courses through the
federal courthouses every day, from Social Security numbers to financial statements to medical
records. Such has always been the case, as long as we've had public courts. That the federal court
data will transform into magnetically stored electrons doesn't change that reality.
In fact, much of the personal information reposed in the federal courts has already been
electronically available for some time. For decades, private-sector services have distilled
information from the public record, converted it to electronic form, and put it to constructive and
proper public use. While electronic filing and imaging may facilitate that information-gathering
process, and may improve the flow of public record information, the truth of the matter is that
such information has already flowed relatively freely for some time without adverse
consequence.
2. Don't let the latest fad in worst-case fears defeat 225 years of open courts.
The potential disclosure of personal information has long been a price we as members of an open
society have been willing to pay in exchange for a fair, accessible and accountable forum for
dispensing justice and resolving disputes. Our court system is a model of openness for the world.
It is fast becoming a model for technological innovation as well. Let's not let the one preclude
the other. Diminish the amount of sunlight that shines on the public record and you
proportionately diminish public confidence in the system's integrity. Do not, in the name of
yet-unsubstantiated technological fears, start down the slippery and Orwellian slope of vetting
and redaction, of closure and secrecy.
3. Punish the specific wrongdoer, not the general public.
In the course of its study the Committee will no doubt collect cautionary tales, some real, some
hypothetical, of crimes and intrusions perpetrated with public-record information. Some may
entreat the Committee to use the instant opportunity to adopt a uniform policy to prevent such
ills. We must beseech you to the contrary: Even the best-intentioned blanket policy will cast an
unhealthy pall on the people's courts. Don't sacrifice the rights and privileges of the public for
the misdeeds of a few transgressors.
The most effective way to deal with privacy invasions, frauds and other information crimes is to
deal with them directly, by discouraging and punishing the wrongdoer. Existing civil, regulatory
and criminal law already does that. To the extent it does not, we ask the Courts to defer to
legislators and regulators. To the extent these issues do fall within the purview of the Courts, we
encourage circumspection. Wait for the flow and use of electronic information to evolve before
attempting to restrict its availability.
4. Even arcane, personal data have legitimate public value.
The great engine of the American economy is the efficient flow of capital. An integral part of that
is the speed with which credit decisions can be made. Those decisions depend on accurate,
complete information, much of it derived from public bankruptcy records. Restrict the flow of
that information, and you put a brake on the credit and finance apparatus in the country. Worse,
allowing concealment of such financial information could have the unintended consequence of
facilitating deception.
In the criminal courts, the availability of individual arrest and indictment data, Social Security
numbers and other personal identifying information enables the public to monitor such important
social issues as fairness in sentencing, recidivism and docket management. Like data, both
statistical and individual, allow monitoring of the administration of justice on the civil side.
These are but a few examples and, indeed, but a few of the guiding principles we commend to
the Committee in its deliberations. We have every faith the Committee will uphold the openness
of the federal courts and recognize that the enduring democratic principles of open government
and open courts transcend whatever the current trends in technology.
We thank you for the opportunity and remain at your service should you require further
information or explanation.
No. 205
1/26/01
Privacy Foundation
Denver, Co
The Privacy Foundation recommends that the Administrative Office of the United States Courts
appoint a National Commission to study the appropriate levels of public access to electronic
databases of court records containing personal information.
The Commission can determine a technologically feasible method for automatic redaction of
sensitive-but-not-confidential information for electronically disseminated, publicly accessible
court records.
Given the substantial privacy issues involved, the Privacy Foundation recommends that a
National Commission be formed to conduct a comprehensive study to determine how court
documents should be publicly available and by what means -- paper and/or electronic. As many
privacy scholars have observed, public policy needs to address the appropriate level of public
access to court documents containing personal information.
Traditionally, information in court records falls within one of three categories: confidential
(juvenile records, corporate trade secrets, etc.); sensitive-but-not-confidential (i.e., social security
number, credit card numbers, bank account numbers); with all other documents generally
available whether in paper or online form, without restrictions. As is currently done in our paper
based court system, access to confidential documents should remain highly restricted and under
the exclusive control of the judge. The next classification of sensitive-but-not-confidential
should be automatically redacted to remove obvious personal information. Currently there are
many different standards used by courts to determine what is sensitive-but-not-confidential, as
well as the public's access to this personal information. All other documents should generally be
available whether either in paper or online form to the public. The National Commission should
be charged with providing definitive guidance on what information should be specifically placed
in each of the three categories.
A court appointed Commission should evaluate the impact of electronic public access methods,
such as unlimited Internet databases, or public access to court records through networked
courthouse computers rather than traditional availability of paper files. Online electronic records
can be searched and copied with ease and accuracy -- unparalleled by traditional hardcopy
methods. This technology should be appropriately available to the American public as we enter
the new millennium. The potential for improper use of personal information, however, is
substantially heightened by this technology. Thus the technology needs to be appropriately
implemented the courts.
The three-part classification needs to be based on the traditional court paper access procedures
presently in place. Given the alarming rise in identity theft, restrictions to
sensitive-but-not-confidential information is essential. Any misuse of information can cause
substantial harm to individuals whose identity is stolen. Systematic redaction of sensitive
identifying information would add a substantial level of assurance against identity theft. For
instance, social security numbers, credit card numbers, tax identification, and other unique
identifiers should be wholly replaced with a series of characters such as "x," or edited so that
only a portion of the original numbers remain.
To relieve the courts of the economic cost of redaction, simple technical solutions can be
uniformly implemented based on the Commission's recommendations. For all electronic filings,
use of a symbolic visual notation system in either Word or WordPerfect could highlight specific
materials which were either confidential or sensitive-but-not-confidential. Each party, therefore,
would be responsible in its electronic filings to follow these procedures mandated by the
Commission. Such a marking method would allow a redacting computer program to recognize
the marked data as sensitive, while also providing a visual indication of sensitivity to people
reviewing the document manually. Once flagged, under specific guidance from the National
Commission, this information could easily be electronically redacted by each court before being
made available to the public in an online fashion.
Further study for the National Commission would include guidelines for redaction of medical
records, tax records, employment records, financial information, and sensitive third-party
information. Additionally, the Commission could determine policy on issues such as public
access to documents that contain corporate trade secrets which are filed with the court solely to
compel discovery, but not used in judicial decisions.
Each court should retain complete supervisory power over all court records with complete
authority to deny public access to files, or portions of files based on present well establish legal
principles. Likewise, the burden to overcome the traditional legal presumption of open judicial
records in the hard copies on file with the courts would remain the same for a party seeking to
have the records sealed.
No. 206
1/26/01
Chicago Bar Association Bankruptcy and Reorganization Committee
The Chicago Bar Association is pleased to provide its comments on the privacy and security
implications of providing electronic public access to court case files in response to the
above-referenced request. We focus specifically on the issues raised in bankruptcy cases where
debtors are required to provide significant disclosure regarding their finances and other personal
matters.
In the process of preparing this letter we reviewed many of the thoughtful comments already
submitted in response to the request of July 31, 2000 published in the Federal Register (Vol. 65
No. 147). There are well recognized concerns on the many sides of this issue. Debtors want to
protect their privacy in an increasingly public electronic age. The credit industry seeks access to
as much information as possible in order to protect its interests. The courts have to be concerned
with the cost and logistics of any solution.
As an association of attorneys who represent debtors and creditors of every stripe, we believe that
we can best serve the Judicial Conference by advising you of the issues that we, as counsel to the
numerous parties in bankruptcy proceedings, perceive as both important and relevant.
Bankruptcy attorneys represent a wide variety of interests, and our clients have significantly
different needs. While we are acutely aware of the issues raised by electronic access to
bankruptcy court files, we also work in an increasingly small judicial landscape, filing a case in
Chicago on Monday, appearing for a hearing in Delaware on Tuesday, meeting with a client in
Los Angeles on Thursday. Access to information in far-flung districts has become not just a
convenience but a necessity. Furthermore, there are still, as there have always been, some
attorneys who represent clients in large districts which require attorneys to travel long distances
to the courthouse. Access to electronic files cuts down significantly on the costs attendant to
such travel and allows attorneys to reduce costs for these clients, an important factor in any
bankruptcy case.
We hope that you will find our thoughts useful.
The Effect on Debtors of Unfettered Public Availability of Complete Bankruptcy Records
The emergence of the internet has allowed for the dissemination of information to a larger
number of people in a more demand oriented and time sensitive manner than virtually any other
medium. With few exceptions, information placed on the World Wide Web can be accessed by
any internet-enabled computer anywhere in the world. While this represents a quantum leap
forward in the ability to reach the general public, there are potential problems which can result
from such availability of information.
To the extent that open and easy access to public records represents the ideal in the relationship
between the judiciary and the public, the internet brings this relationship closer to that ideal than
ever before. Prior to the internet, a person living in Chicago, Illinois, who wished to examine the
court record in a case in Chicago would venture to the courthouse to examine it. This imposed a
greater burden to access than simply posting the information on the World Wide Web. With
respect to a Chicago resident with an interest in a case pending in Wilmington, Delaware, the
burden was even higher. The internet alleviates this burden, as the above individual could,
assuming that the records have been placed online, access either record from his home. While
this should be viewed as a triumph in public access, the availability of the entirety of court
records on the internet does create some problems as well, particularly for debtors filing petitions
for bankruptcy relief.
In order to obtain bankruptcy relief, a bankrupt debtor must disclose a great amount of otherwise
private personal and financial information. While the provision of such information helps ensure
the proper administration of all non-exempt assets of a debtor's bankruptcy estate, and allows
creditors to determine the extent of any claims which they may have against the estate, the
availability of such information can also facilitate those who wish to use this information for
illegal, improper or nefarious purposes.
For instance, by accessing the case-imaging files of the United States Bankruptcy Court for the
Northern District of Illinois, Eastern Division, and picking a name at random, "Clinton," one
could come across the Chapter 13 filing of Robert Earl Clinton. Simply by examining the case,
one readily ascertain that Mr. Clinton's Social Security number is 331-48-2779. His present
address is 6124 N. Seeley, Apt. 1B, Chicago, Illinois, 60659, his home phone number is
773-274-9970, he is presently employed as a Banquet Houseman at the Westin O'Hare Hotel,
and his work phone number is 847-698-6000. [Mr. Clinton does not have any credit card
accounts reflected in his schedules.] In addition, as a matter of course, the record also reflects
numerous samples of his signature, his annual salary, and his spending habits.
While courts have the ability to monitor who views the case records at the courthouse,
monitoring the individuals who access court records online is much harder to do. While one
solution might involve registration of users prior to being granted access to online court files,
there is no assurance that either the information provided is either accurate or complete.
While a number of the privacy concerns are not endemic solely to the internet, they are most
definitely accentuated by it. A system which allows almost entirely unfettered internet access to
bankruptcy court records containing private financial and personal information about bankrupt
debtors could expose these debtors to significant at risks. While the goals served by the open and
available nature of bankruptcy court records, pursuant to Section 107(a) of the Bankruptcy Code
are well1/ may not adequately protect bankrupt debtors from the perils which may result from
the large-scale dissemination of private financial and personal information on the World Wide
Web.
While, as outlined above, there are significant concerns that individual debtors could be harmed
by the placement of all court records on the World Wide Web, there is perhaps a greater concern,
namely that these risks will have a "chilling effect" on those who would benefit from the use of
the bankruptcy system, but do not make use of that procedure out of concern that their private
financial information, exposed to the general public would be vulnerable to misuse. While many
debtors may not have any viable alternative to filing for bankruptcy protection, it does not seem
equitable that they be subject to such risks solely as a result of their poor financial condition. In
the bankruptcy context, a balance must be achieved.
Creditors' Access to Relevant Financial Information Cannot Be Restricted
Creditors within the bankruptcy process require full disclosure of all of the debtors' personal and
financial information. In order to properly participate in the bankruptcy process, creditors must
be able to make rational, cost effective decisions based upon full and complete disclosure.
Reducing the amount of information available by either reducing the amount of information
required of debtors or redacting the information provided hampers the "equities" of the
bankruptcy system. If complete and accurate disclosure is not required, with the ability for all to
check the veracity of the information, dishonest and deceptive debtors can find solace in the fact
that their deception is less likely to be discovered thus increasing the chance of fraud and abuse
of the bankruptcy process.
In consumer bankruptcies, creditors' rights to information about the debtors' finances play a
significant role in determining how they proceed on several issues. In chapter 7 cases, not only is
that information that identifies the debtors crucial, but also crucial is the information as to the
debtors' financial conditions. Too often, common names may be present for hundreds of
accounts, i.e., John Smith holding an American Express account, such that the reliance on social
security numbers is necessary to distinguish which name belongs on which account.
It is not uncommon that debtor fraud is discovered by parties who know the debtor and his
financial situation. Non-creditor parties who learn of the debtor's bankruptcy filing have the
opportunity to "investigate" the debtor and notify the debtor's attorney, the case trustee, or the
United States Trustee of any incomplete or inaccurate information. Continuing the policy of
allowing public internet access to a full bankruptcy case file is an important deterrent to debtor
fraud.
Access to all of this information through the World Wide Web is the synergy of technology and
the bankruptcy system. Creditors are no longer required to physically visit each courthouse from
which they need information. This will reduce the creditor's costs in a bankruptcy, savings
which will be passed to consumers. Further, this allows creditors from afar to monitor a
bankruptcy. This is in the best interest of the bankruptcy system to help stem abuse and fraud.
Moreover, reducing access to this information will raise the cost of not only bankruptcy, but of
goods and credit in general. Each dollar that a creditor is required to spend to make an accurate
assessment of whether they are dealing with the correct debtor or to determine information about
this debtor will ultimately be borne by the consumer. Although this is not a surprise, it is to the
benefit of the dishonest debtor who abuses the system but to the detriment of not only the honest
but unfortunate debtor that "plays by the rules, " but to society in general. This inequity is one
that should be carefully reviewed prior to any changes being implemented in the collection and or
dissemination of the debtors' private information.
How Internet Access to Bankruptcy Filings Affects Bankruptcy Practitioners
The efficiency of bankruptcy attorneys is increased by the ready availability of all case
information on the internet. The decision to place bankruptcy documents on the worldwide web
gives each attorney, in effect, an electronic file cabinet. Regardless of whether an attorney
receives a document it is inevitable that bankruptcy documents will sometimes not be in their
proper place in an attorney's office or the attorney will need the document on a few moments
notice, not enough time to search the case file or recall the document from a central storage
location. Accordingly, having each bankruptcy document at your fingertips is a huge benefit.
Moreover, the ability for an attorney to retrieve files from his desk cuts down the time spent on a
file, which in turn decreases billings to clients. Attorney efficiency is also increased because
attorneys need not postpone their work until a person physically travels to the courthouse,
retrieves a document, copies the document, and brings the document to the attorney.
Additionally, even if an attorney travels to the court to copy a document, he or she may
mistakenly copy the wrong document or fail to find or copy information relevant to the current
issue. While these same problems arise from web research of bankruptcy documents, the waste
of time and money is not nearly as severe. Furthermore, the chance that an irrelevant document
is copied or a relevant document is overlooked increases when an attorney uses an assistant to
procure a document. Thus, the more information put at the fingertips of an attorney, the less time
spent looking for public documents at the courthouse and the better information an attorney has
with which to serve his or her client, translating to lower client billing.
With ready access to all the relevant information from a bankruptcy case on the internet, an
attorney is able to provide his client with better service. The more information an attorney
possesses regarding a bankruptcy, the better the attorney will be able to assess the status of his or
her client's position. This leads to better, more efficient decisions, which should lead to better
results for the client. Furthermore, easy access to bankruptcy documents promotes accountability
of attorneys because clients and the public in general can track any bankruptcy case by any
computer. A higher standard of legal bankruptcy work may result.
Placing all bankruptcy documents on the web will promote equality for attorneys in the sense that
those attorneys closer to the courthouse will have no easier access to the public information
stored there. Regardless of where any attorney is based, so long as that attorney has a computer,
access to all bankruptcy documents will be equal.
Access to bankruptcy records through the Internet may also free up important government
resources dedicated solely to finding and copying documents at the courthouse. It is likely that
the resources freed up as a result of Internet access to documents will outweigh the time it takes
in which to scan those documents into a database. Courthouse personnel can then focus their
resources elsewhere.
An unanswered question remains: the effect, if any, that Internet access to bankruptcy documents
will have on the practice of bankruptcy. On the one hand, if filers know just how accessible their
personal data will be to the public, they may be discouraged from filing bankruptcies. On the
other hand, Internet access to bankruptcy filings will raise the public understanding of what filing
for bankruptcy entails. Either way, the new accessibility rules may figure in to some bankruptcy
filings to some degree.
Placing bankruptcy documents on the Internet also raises new questions within the practice. For
example, if a bankruptcy attorney receives no notice or insufficient notice of a hearing, but
discovers of the hearing through his perusal of the case on the Internet, is the attorney under any
obligation to attend the hearing? Can it be argued that the attorney had proper notice, or if
improper, will the notice received via the Internet serve any function at all? These are questions
that remain unanswered.
Major Issues and Potential Solutions
As we have previously stated, the CBA's membership includes both credit industry
representatives, who generally favor unfettered electronic access, and privacy advocates, who
tend to favor a more cautious, limited access approach. While the wide-ranging distribution of
interests within the CBA makes recommending specific reforms a challenge, we believe that
reform should begin with the issues regarding which both sides of the debate should agree.
No matter what debtor information is ultimately included in an online record, we believe that the
debtor should be informed (a) that the public at large can view any information filed with the
bankruptcy court; and (b) of the ease or difficulty of the public gaining such access. In the
Northern District of Illinois, debtor case records are available at no charge to any person who
owns an internet capable computer. Putting aside whether this should be the case, we believe
that debtors, in order to make a more educated choice about the benefits and detriments of
bankruptcy, should be informed that currently the private and financial information contained in
their bankruptcy petitions and schedules is posted to the internet.
Disclosure is a hallmark principle in the canon of ethics governing the relationship between
lawyer and client. Lawyers are generally required to explain matters to their clients in order to
permit the client to make informed decisions. In accordance with the principle of disclosure, it is
our position that debtors should be informed of the fact that their bankruptcy schedules may be
accessed online by the general public.
We believe that the onus of informing the debtor of the extent to which the public will have
access to his/her records falls first and foremost with debtor's counsel. We recommend that the
Conference conduct further inquiry on the extent to which debtors' attorneys currently inform
their clients regarding bankruptcy records access. If the result of an inquiry reveals that debtors'
attorneys generally do not explain to their clients that the public may have internet access to the
debtors' records, we would further recommend remedial action be taken to insure that this
practice is followed.
Perhaps the most controversial issue regarding posting bankruptcy case information on the
internet is the debtor's right to maintain the confidentiality of his or her social security number.
The arguments for both sides are well known: the debtors believe access to this information
compromises both their personal and financial well being, the creditors believe that without
access to this unique identification number they will not be able to confirm the identity of
debtors. However, we do not believe that this must be the zero-sum proposition that both sides
suggest that it is. Rather, we recommend that the Conference conduct a study on the costs to
both debtors and creditors to determine what changes, if any, can be made to the requirement that
a full social security number be provided on the bankruptcy petition. One of the most obvious
solutions, although we do not know if it is viable, is to have the debtor include only the last four
digits of his or her social security number with the petition. Alternatively, the debtor's social
security number could be placed on a separate and distinct page of the petition which is not made
available on the internet. Of course, there may be numerous other potential solutions, but
without a thorough review of the facts and circumstances of the current state of affairs, the
propriety of any change can not be known.
We thank you for the opportunity to comment on the right to privacy as weighed against the
posting of bankruptcy case information on the internet and hope you find our comments both
insightful and useful.
No. 207
1/26/01
Senny Boone
General Counsel National Newspaper Association
Arlington, VA
These comments are submitted on behalf of the National Newspaper Association (NNA), the
oldest and largest newspaper organization in the country, representing over 3,300 community
newspapers. NNA is pleased to have the opportunity to provide initial comments to the Court
Administration and Case Management Committee's Subcommittee on Privacy and Electronic
Access to Case Files on its outline of proposed policies related to the availability of court case
files.
It is laudable that the National Judicial Conference is examining the important issues of public
access to case files with today's increased focus on access rights due to the availability of
information on the Internet. NNA recognizes public concern over privacy is an important topic in
the public policy arena both on Capitol Hill and in the Executive branch. NNA provides general
comments as the federal judiciary reviews this topic, and hopes for a continued opportunity to
participate in the process of developing a balanced set of policies governing access. We would be
pleased to participate in a public hearing if one is held by the Conference.
NNA members are community newspapers in rural, suburban and urban areas. The vast majority
of our members use both civil and criminal court records to access vitally important information
for their local communities. Such information is used to provide accurate and timely news and
information to local citizens. Newspapers use court records for a variety of reasons, such as to
verify stories, analyze trends, plan coverage, for accuracy in coverage, and for scheduling
purposes. Many currently use electronic access, but most newspapers rely upon local courthouse
information.
NNA is concerned that the proposal as presented seeks to curtail the access rights to criminal
records and civil records by distinguishing public access solely on the basis of the medium, here,
the Internet. This is an artificial distinction. NNA has long supported the fundamental principle
that court records, created at taxpayers' expense, belong to the public regardless of whether they
are paper or electronic records. Open access to such information is important to ensure the proper
functioning of the administration of justice and due process both in civil and criminal cases.
NNA recognizes the need for the accused to have a fair trial based on open records, rather than a
trial conducted for the benefit of law enforcement agencies, judges, and court personnel. Secrecy
in the administration of justice is poison to our democratic due process principles.
As already set forth in your staff paper, "Privacy and Access to Electronic Case Files in the
Federal Courts," public access to criminal proceedings is well established both in common law
and constitutional law. See Richmond Newspapers inc., v. Virginia, 448 U.S. 555 (1980),
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984.) Courts across the country have
extended the right of access to specific records in both civil and criminal proceedings in varying
degrees.
This proposal explains that new policy is required as federal courts are moving swiftly to create
electronic case files and to provide public access to the files through the Internet. This would
mean that the access and ability to obtain court documents would no longer depend upon
physically going to the courthouse. Such a new efficient and uniform system of access would be
heartily applauded by newspapers across the country, many of whom have scarce resources to
send reporters to several courthouses in surrounding communities in adequate time to provide
full coverage of an important proceeding. Further, access to federal case files would allow
newspapers to expand and develop coverage on issues that extend beyond their communities.
At the same time, such advances will assist local court personnel and free their time from having
to search through hard copy files and make copies to meet public demand.
THE NEW CASE MANAGEMENT SYSTEM:
The new system as described would include two components, a new case management system,
the Case Management/Electronic Cases Files (CM/ECF) which allows electronic filing by
attorneys and creates electronic case files, and the provision of access to electronic files both in
the courthouse and beyond through a new web-based system called "Public Access to Court
Electronic Records" through a password and login. Costs for records would drop from .50 cents
per copy to .07 cents per page downloaded. Electronic case files also will be available at public
computer terminals at courthouses free of charge. This system is an improvement that would
enhance the administrative side of providing public access at low cost.
However, the proposal then turns to concerns raised by members of the court community
regarding personal privacy implications of "unlimited Internet access" because of information
that might contain private or sensitive information. Raising privacy fears rather than establishing
actual harm to protected privacy rights is an old argument used to close public access to records
that may in fact be embarrassing or reveal serious misconduct by government officials. Today,
the new capability of quickly disseminating information over the Internet has become the main
argument for curtailing information that belongs in the public domain.
NNA believes there are methods already in place to protect privacy that are less harmful than
restricting access in advance of any showing that such access would harm an individual's privacy
rights. Judges and interested parties already have procedural tools such as protective orders or
motions to seal that will protect individuals. Closing access presumptively simply due to a new
technology would be premature. To argue that access to courthouse paper records information is
sufficient for the public while a new efficient system is developed at taxpayer expense would be
unfair.
In fact, according to the privacy staff paper, some believe privacy is actually protected in
courthouses because of the vast stacks of documents the public must struggle through to obtain
relevant information. Now these individuals fear that an efficient and effective case management
system will harm privacy. This is a cry for managing the access rights of the public through
ineptitude and would be shameful for courts to apply.
There is little beyond a vague statement on concerns about security and privacy to warrant an
immediate reversal of longstanding court policy towards open access. Before taking such a step,
NNA urges the Judicial Conference to do a detailed analysis of harm, rather than relying on a
warning of potential harm that is not substantiated. It seems better public policy to presume the
right of access to public information as the new technology evolves and then address specific
examples of harm as they arise rather than establishing a new scheme that will create different
standards of access for the public.
PROPOSED POLICY ALTERNATIVES:
The offered policy alternatives are an attempt to balance the access and privacy interests.
Civil Case Files:
There are four alternatives offered: (1) maintain the presumption that all filed documents that are
not sealed are available both electronically and at the courthouse; (2) have someone define what
documents should be included in the "public file" and thereby, available to the public either at
the courthouse or electronically; (3) have someone set up "levels of access" to certain electronic
case file information and maintain electronic access for everyone else at the courthouse;
(4)finally, amend the federal rules of civil procedure to account for privacy and security interests.
Only the first alternative is supportable. It would maintain the presumption that all filed
documents that are not sealed are available both at the courthouse and electronically. The counsel
of parties and pro se litigants would seek protective orders and would rely upon judicial
discretion Additionally, before a civil case record is sealed, there should be a public hearing in
advance of records closure.
The second policy alternative is not acceptable since it would allow court staff to determine in
advance of disclosure what is to be disclosed, leading to closure of public records with no actual
showing of why such information is not public. It places too much discretion in the hands of
court personnel.
The third alternative, to establish "levels of access"to certain electronic case file information
would allow impermissible content-based distinctions made, since it would restrict information
access based on the individual, their presumed use of that information, and the nature of the
document. Such a content-based system of access would be unconstitutional under the First
Amendment since it would set up differing levels of access for potential speakers.
It is important to note that as more and more court records are shifted to an electronic-only
version, there will be less information available at the local courthouse in hard copy. Therefore, it
is wrong to assume that the entire paper file will remain available at the local courthouse,
granting the same level of access to the public in paper form as in electronic records and ensuring
the access rights of the public.
Criminal Case Files:
Neither alternative under the criminal case file policy recommendation is acceptable.
There is a greater presumption of access for criminal records than for civil records. See,
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980.) The first alternative would not
allow for electronic access to criminal case files at all, and would force the public to rely upon
local prosecution and defense attorneys to provide the information. The proposal allows for too
much discretion by courthouse personnel since it would allow only those with a "true need" for
information to access it at the courthouse. How would a "true need" be defined? Who would
apply this standard day-to-day? The proposal also states that any legitimate need for information
via electronic access is automatically outweighed by "safety and security" concerns. This is not
the compelling state interest required to close access to criminal records under both the First and
Sixth Amendments.
The second alternative, providing only limited access to criminal electronic case files is
insufficient. Again, it presumes harm where none has been shown. In fact, newspapers have a
longstanding partnership with law enforcement agencies in criminal cases that reveal important
security concerns for local communities and reveals relevant information that assists in the
administration of justice. At the same time, defendants that may not be able to afford attorneys
would suffer under secretive proceedings.
Bankruptcy Case Files:
Next, with regards to the proposal to amend section 107 of the Bankruptcy Code, it is unclear
why it is necessary to amend the law at this juncture. It is not demonstrated why the public's
access rights in such proceedings need to be re-examined. Bankruptcy proceedings are
even-handed, especially for those who are able to have their debts forgiven. Once an individual
has entered bankruptcy, creditors are prevented from contacting the debtor. Creditors deserve
unfettered access to information that would alert them to the fact that the individual has declared
bankruptcy. Such information and subsequent information throughout the proceeding is also
important to local communities and businesses involved with the debtors. Such access should be
controlled through the parties in the case and managed by the judge to ensure fairness.
Presumptively closing such records in advance of strong policy reasons would not be sufficient.
Appellate Proceedings:
Finally, with regards to the appellate level proceedings access, the final rules should be consistent
with those that apply at the trial level. With regards to sealed or restricted records from a trial
court, an open hearing should be held at the request of a party or also at the request of a member
of the public challenging the restriction.
In conclusion, NNA believes it would be productive to work together towards open access of
electronic records so that the public can benefit from new technology. In setting a national policy,
open access to both civil and criminal records managed through a uniform application of
standards conforming to the First Amendment free speech guarantees and the Sixth Amendment
fair trial protections should be the goal of the judicial branch.
Thank you in advance for your consideration of these important matters. I would be happy to
provide further information and make a witness available to testify if there is a public hearing.
No. 208
1/26/01
Bill Pusch
Acxiom Corp.
Little Rock, AR
I. Introduction
Acxiom Corporation is the global leader in real-time Customer Data Integration, offering
innovative database marketing services, infrastructure management, premier data content
and integration technologies. Founded in 1969, Acxiom is currently headquartered in
Little Rock with operations in the United States, the United Kingdom, France, Spain,
Japan and Australia.
Acxiom appreciates the opportunity to submit comments to the Committee concerning the
privacy and security implications of providing electronic public access to court case files.
Information and/or data are necessary in this fast-paced digital age. A whole generation of
individuals and businesses just concluded a decade built on instant access and quick response.
That generation will not tolerate anything but the free-flow of information. The easier
information is obtained, the more the American citizens and the economy benefit. The Board of
Governors of the Federal Reserve System said it best. "It is the freedom to speak, supported by
the availability of information and the free-flow of data, that is the cornerstone of a democratic
society and market economy."
II. Public Access of Court Case Files
"It is clear that the courts of this country recognize a general right to inspect and copy public
records and documents, including judicial records and documents." Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597 (1978). Citizens want to keep a watchful eye on the
workings of public agencies. Id. Newspapers want to publish information concerning the
operation of government. Id. The operation of government, in modern times, usually involves
the courts. See United States v. Lopez, 514 U.S. 549 (1995) (the United States Supreme Court
abolished the Gun-Free School Zones Act of 1990, holding that Congress didn't have the power
to pass such a law).
"The generation that made the nation thought secrecy in government one of the instruments of
Old World tyranny and committed itself to the principle that a democracy cannot function unless
the people are permitted to know what their government is up to." EPA v. Mink, 410 U.S. 73,
105 (1973).
The public's watchful eye is a necessary element in America's democracy, and court case files
are a part of the items to be reviewed by such a watchful public. Court cases sometimes involve
highly sensitive and private matters. Is there any balance? Yes. Federal judges are not without
power to protect case-related information from unauthorized disclosure in civil cases. Rule 26(c)
of the Federal Rules of Civil Procedure gives judges broad discretion to issue orders that protect
case-related information from unauthorized disclosure. Judges may seal case files, either sua
sponte or on motion of one of the parties, thereby protecting privacy interests in case files.
III. Convenient Public Access is Good Policy
Open access to public records is a cornerstone of American democracy. Such access is central to
electing and monitoring public officials, evaluating government operations, and protecting
against secret government activities. Open access recognizes that citizens have a right to obtain
data that their tax dollars have been spent to create or collect.
In 1998, the FBI alone made more than 53,000 inquiries to commercial on-line databases to
obtain a wide variety of "public sources information." According to Director Louis Freeh,
"Information from these inquiries assisted in the arrests of 393 fugitives wanted by the FBI, the
identification of more than $37 million in seizable assets, the locating of 1,966 individuals
wanted by law enforcement, and the locating of 3,209 witnesses wanted for questioning."
According to Director Freeh the FBI consulted commercial on-line databases to obtain "credit
records, real property and tax records, including filings with the Securities and Exchange
Commission and bankruptcy filings; articles of incorporation; financial information; rental
records; news articles; concealed weapons permits; and hunting/fishing licenses" and other
public source information regarding individuals, businesses, and organizations that are subjects
of investigations." Access to commercial providers of public record information "allows FBI
investigative personnel to perform searches from computer workstations and eliminates the need
to perform more time consuming manual searches of federal, state, and local records systems,
libraries, and other information sources. Information obtained is used to support all categories of
FBI investigations, from terrorism to violent crimes, and from health care fraud to organized
crime."
American consumers save $100 billion a year in mortgage payments because of the efficiency
and liquidity that public record information makes possible.
Public record information is used to locate missing family members, heirs to estates, pension
fund beneficiaries, witnesses in criminal and civil matters, tax evaders, and parents who are
delinquent in child support payments. The Association for Children for Enforcement of Support
reports that public record information provided through commercial vendors helped locate over
75 percent of the "deadbeat parents" they sought.
IV. Policy Choices Concerning Electronic Public Access to Federal Court Case Files
This Committee should recommend a policy advocating as much access as possible without
harming privacy interests. As described above, it is clear that the more robust the flow of data,
the more robust the information infrastructure that supports both democratic processes as well as
growth of our economy. This reflects the constitutional importance of open public records and
the law in most U.S. jurisdictions today: access is presumed unless a specific privacy exemption
applies. It also reflects the importance of the public record infrastructure to our government and
our economy.
As described in the conference notice, the courts plan to provide public access to electronic files,
both at the courthouse and beyond the courthouse, through the internet. PACER (Public Access
to Court Electronic Records) will be the primary method of obtaining access to the dockets and
actual case file documents. Individuals who seek a particular document or case file will need to
open a PACER account and obtain a login code and password. Public access through PACER
will involve a fee of $.07 per page for a case file document or docket viewed, downloaded or
printed.
The conference notice divided the case file types into four distinct categories: Civil Case Files,
Criminal Case Files, Bankruptcy Case Files and Appellate Case Files. Under the case file types,
various policies were presented. The discussion below is divided according to the conference
categories, sets out the various policies under each, and points out the policy which Acxiom
asserts is the most advantageous to all parties.
A. Civil Case Files
Policy 1. Maintain the presumption that all filed documents that are not sealed and are
available both at the courthouse and electronically.
This approach would rely upon counsel and pro se litigants to protect their interests on a case-by-
case basis. It would also rely on judges' discretion to protect privacy and security interests on a
case-by-case basis.
Response: This method is the least burdensome on the courts and the public and is the current
policy in place. This approach relies upon counsel and pro se litigants to protect their interests
on a case-by-case basis through motions to seal specific documents or motions to exclude
specific documents from electronic availability. It would also rely on judges' discretion to
protect privacy and security interests on a case-by-case basis through orders to seal or to exclude
certain information from remote electronic public access.
Policy 2. Define what documents should be included in the "public file"
and, thereby, available to the public either at the courthouse or
electronically.
This option would treat paper and electronic access equally and assumes that specific sensitive
information would be excluded from public review or presumptively sealed. It assumes that the
entire public file would be available electronically without restriction and would promote
uniformity among district courts as to case file content. The challenge of this alternative is to
define what information should be included in the public file and what information does not need
to be in the file because it is not necessary to an understanding of the determination of the case or
because it implicates privacy and security interests.
Response: What information should be included in the public file and what information
does not need to be in the file? Making this determination would be a daunting task, and one that
would inevitably bring about challenges to the final decision. As set forth in the Response to
Policy 1, what the public should have access to is a question best addressed by the individual
litigants, counsel, and judge on a case-by-case basis.
Policy 3. Establish ``levels of access'' to certain electronic case file information.
This contemplates use of software with features to restrict electronic access to certain documents
either by the identity of the individual seeking access or the nature of the document to which
access is sought, or both. Judges, court staff, parties and counsel would have unlimited remote
access to all electronic case files. This approach assumes that the complete electronic case file
would be available for public review at the courthouse, just as the entire paper file is available for
inspection in person. It is important to recognize that this approach would not limit how case
files may be copied or disseminated once obtained at the courthouse.
Response: This would defeat the entire purpose of making access more convenient for
the public. The public should have the same access privileges to public records.
Policy 4. Seek an amendment to one or more of the Federal Rules of Civil
Procedure to account for privacy and security interests.
Response: Rule 26(c) of the Federal Rules of Civil Procedure already gives each litigant
and judge in individual cases the ability to safeguard private information.
B. Criminal Case Files
Policy 1. Do not provide electronic public access to criminal case files.
This approach advocates the position that the ECF component of the new CM/ECF system
should not be expanded to include criminal case files. Due to the very different nature of criminal
case files, there may be much less of a legitimate need to provide electronic access to these files.
The files are usually not that extensive and do not present the type of storage problems presented
by civil files. Prosecution and defense attorneys are usually located near the courthouse. Those
with a true need for the information can still access it at the courthouse. Further, any legitimate
need for electronic access to criminal case information is outweighed by safety and security
concerns. The electronic availability of criminal information would allow co-defendants to have
easy access to information regarding cooperation and other activities of defendants. This
information could then be used to intimidate and harass the defendant and the defendant's family.
Additionally, the availability of certain preliminary criminal information, such as warrants and
indictments, could severely hamper law enforcement and prosecution efforts.
Response: The public has an interest in having access to criminal cases. FBI Director
Freeh's comments to the Senate Committee, mentioned above, detail the benefits and importance
of open access to public records, such as criminal case files.
Policy 2. Provide limited electronic public access to criminal case files.
This alternative would allow the general public access to some, but not all, documents routinely
contained in criminal files. Access to documents such as plea agreements, unexecuted warrants,
certain pre-indictment information and presentence reports would be restricted to parties,
counsel, essential court employees, and the judge.
Response: This is a balanced approach that alleviates safety and privacy concerns, but still
allows the public to have convenient access to necessary information provided within criminal
case files.
C. Bankruptcy Case Files
Policy 1. Seek an amendment to section 107 of the Bankruptcy Code.
Section 107 currently requires public access to all material filed with bankruptcy courts and gives
judges limited sealing authority. Recognized issues in this area would be addressed by amending
this provision as follows: (1) Specifying that only ``parties in interest'' may obtain access to
certain types of information; and (2) enhancing the 107(b) sealing provisions to clarify that
judges may provide protection from disclosures based upon privacy and security concerns.
Response: By seeking relief from the bankruptcy court, an individual or corporation
obtains debt reduction assistance, with creditors sometimes only receiving pennies on the dollar.
Bankruptcy is a legal and useful tool for those with serious debt problems, but all choices have
consequences. A creditor should be able to find out whether an individual or corporation has
filed bankruptcy prior to issuing a loan. The court, whether a county court or bankruptcy court,
belongs to the taxpayers. If one avails oneself of the protections of the court, e.g. stay of
creditor's actions, then one cannot expect the same amount of privacy as before.
Policy 2. Require less information on petitions or schedules and statements filed in bankruptcy
cases.
Response : Full disclosure of all debts and assets is such an important ingredient in the
entire process and purpose of bankruptcy protection. The bankruptcy trustee is entrusted, by law,
with organizing the affairs of the debtor so as to provide relief and to provide payment to
creditors in as fair a manner as possible. Less information provided by the debtor can only make
the duties of the bankruptcy trustee and the court more difficult.
Policy 3. Restrict use of Social Security, credit card, and other account numbers to only
the last four digits to protect privacy and security interests.
Response: Full disclosure is necessary for the proper administration of a bankruptcy case.
The right to avail oneself of the protections of the bankruptcy court carries with it certain
responsibilities. A creditor should be able to search a bankruptcy case file to ensure that valid
account numbers are listed.
Policy 4. Segregate certain sensitive information from the public file by collecting it on
separate forms that will be protected from unlimited public access and made available
only to the courts, the U.S. Trustee, and to parties in interest.
Response : Full disclosure and access to that disclosure is necessary for government
claimants and other potential claimants whom the debtor has failed to list.
D. Appellate Case Files
Policy 1. Apply the same access rules to appellate courts that apply at the trial court level.
Response: Trial court decisions that involve access rules should be reviewable.
Policy 2. Treat any document that is sealed or subject to public access restrictions at the trial
court level with the same protections at the appellate level unless and until a party challenges the
restriction in the appellate court.
Response: As stated previously, Acxiom supports the current standard set forth in Rule
26(c) of the Federal Rules of Civil Procedure where the individual litigants and/or trial court
judge make the determination of whether to restrict information. That determination should
remain a reviewable issue.
V. Conclusion
Acxiom Corporation appreciates the opportunity to submit comments on this important issue,
and looks forward to working with the Committee to ensure that the public continues to have
access to court case files.
No. 209
Individual Reference Services Group
Washington, DC
The Individual Reference Services Group ("IRSG") welcomes the opportunity to submit these
comments to the U.S. Judicial Conference's Subcommittee on Privacy and Electronic Access to
Case Files in response to its request for comments concerning privacy and access to public
records, as stated in the Federal Register Notice of November 8, 2000 (65 Fed. Reg. 217,
67016-67019 (2000)). The members of the IRSG are in the business of redisseminating
information, including public record information. The IRSG joins its members that are
separately filing comments—Dolan Media Company and LEXIS-NEXIS—in expressing concern
with proposals under consideration by the Judicial Conference that would alter the judiciary's
long-standing policy of open access to court records.
For over a century, the federal judiciary's current policy has served our country well. The
judiciary's policy of open access to all court case file documents—unless sealed or otherwise
restricted due to a statute or federal rule—should be preserved regardless of whether the data is
stored and made available in paper or electronic form. Changes in the means by which court
record information can be stored and obtained are nothing new. These means have evolved
during the past century and have not affected the basis of the legal presumption that judicial
records are open for public inspection. Thus, because existing court practices have provided
sufficient individual privacy protection, there is no need to change the current judicial policy,
regardless of whether the information is maintained and disseminated in paper or electronic form.
The IRSG's interest in the continued availability of the judiciary's documents is long-standing.
For example, the IRSG filed an amicus brief during the U.S. Supreme Court's recent
consideration of the issue of public access to judicially held records in L.A. Police Department v.
United Reporting Corp., 120 S. Ct. 483 (1999).
The IRSG represents leading information industry companies that provide commercial
information services to help identify, verify information about, or locate individuals. See
http://www.irsg.org. In providing their services, IRSG members draw on public record
information, including data obtained from court records. Information from public records is an
important tool for preventing the misidentification of individuals. This is particularly true of
records about events such as convictions and dispositions of legal disputes.
Public record information services often provide faster access to that information in formats
demanded in the market, combine it with information from various other sources for quick
reference, ensure its reliability and integrity, and offer customer support and other assistance in
using the information. These services bring more information by, from, and about the
government to more members of the public every day, so that a central goal of effective
democracy—an informed citizenry—can be achieved.
These services play an important role in facilitating law enforcement, fraud prevention and
detection, and a broad range of business transactions and legal proceedings. A wide variety of
businesses and institutions rely on access to public records through these services. For example,
members of the legal community have long used databases of public record information to locate
heirs and assets, enforce judgments, conduct "due diligence" in connection with company
mergers, and serve parties and witnesses.
The IRSG provides a value-added service to the public and to the business community.
Preserving the judiciary's current open access policy will guarantee the continuation of the
availability of this valuable and vital public information.
The IRSG appreciates the opportunity to submit these comments on this important public policy
matter and looks forward to working with the U.S. Judicial Conference to ensure continued
public access to judicially held information.
No. 210
1/26/01
Robert Becker, Esq.
Washington, DC
These comments were originally submitted to the Committee on Administration and Case
Management a year ago in my capacity as a subcommittee chair of the D.C. Bar Technology Task
Force and as Freedom of Information chair of the Society of Professional Journalists, D.C.
Professional Chapter. They addressed issues raised in Privacy and Access to Electronic Case
Files: Legal Issues, Judiciary Policy and Practice, and Policy Alternatives (referred to below as
Privacy and Access), a report prepared by the staff in the Administrative Office of U.S. Courts,
Office of Judges Programs. That document was the basis for discussions that resulted in
November 2000 in issuance of the request for public comment on public access to electronic case
files. Although the RFC recasts the issues raised in Privacy and Access, I am resubmitting these
comments so they will reach the broader audience joining the debate over public access to case
files online. The D.C. Chapter of SPJ has joined its parent, the Society of Professional
Journalists, the Reporters Committee for Freedom of the Press, and the Radio-Television News
Directors' Association in comments specifically addressing issues raised in the RFC. If the
Judicial Conference holds a public hearing on this issue, which I believe it should, I request the
opportunity to testify.
Privacy and Access discussed several concerns about online access which appear to come from
within the judiciary, the Administrative Office, and interest groups. It discussed the origins of
and limitations on the public right of access to case files and proposed alternatives for addressing
the concerns. Although the report tended to minimize the legal foundation on which the public's
presumptive right of access to case files rests and the importance of it, it did not promote any
specific changes in law, rules or policy to restrict access.
Case Files Should Be Available to the Public Online to the Same Degree They Are Available at
the Courthouse
It should be noted at the outset that in Privacy and Access the Administrative Office staff
separated users of case information into three groups: judges and court personnel, parties to the
case and their lawyers, and the general public. In discussing an alternative access model it
mentioned a fourth category including U.S. attorneys, bankruptcy trustees and U.S. trustees.
Lawyers who are not parties would be categorized as members of the general public.
Lawyers often become involved in litigation that is not unique. A case may present an issue that
is also being litigated thousands of miles away in another federal courthouse, and that distant
case may be further down the pipeline. Pleadings and discovery documents in that case probably
would be very useful, and having them readily available might save the client considerable
expense. Recognizing this, defendants in many toxic tort and products liability cases and the
tobacco companies in the early suits brought by individual litigants fought long and hard to
prevent public access to case documents and the sharing of discovery. When Congress in 1978
refused to eliminate the filing requirement from Fed. R. Civ. P. 5(d), it expressed the belief that
the public should have ready access to such information.
But many federal district courts have adopted local rules discouraging the filing of discovery
because clerks lacked the space to store the large volume of material generated in civil litigation.
Through the use of electronic filing and retrieval technology this concern will become almost
negligible and the district courts should be able to implement both the letter and spirit of Rule
5(d), which were intended, at least in part, to benefit the general public, litigants similarly
situated and their lawyers. Thus, public access to judicial records should increase as electronic
filing systems are implemented.
Online access to case information will facilitate the study of legal issues by academics and law
students who do not have the resources to go from courthouse to courthouse to review case files.
It will benefit the legal profession generally in that researchers will be able to analyze whether, in
dealing with particular procedural or substantive issues, federal courts around the country are
providing uniform justice. The 1988 Washington Post series cited above at footnote 3
demonstrates the value of such research aimed at informing the general public, as well as the
legal community.
Denying the public equal access to electronic case files will work to the benefit of major
corporations, government entities and other financially-sound organizations and to the detriment
of litigants and potential litigants against them. This is so because the defendants have the
resources to send lawyers and investigators to districts where similar litigation is pending to
comb the files for useful information, but plaintiffs lack the ability to do the same.
But the USAO staff enumerates several factors "that may justify some electronic access
restrictions." It notes that "[b]alancing access and privacy interests in public information would
be consistent with recent actions by the executive branch." Privacy and Access at 30. This
attempt to analogize access to court records, at least remote access to them, to principles
developed in implementing access to executive agency records pursuant to the federal Freedom
of Information Act, 5 U.S.C. §552, and Privacy Act, 5 U.S.C. §552a causes serious problems.
Agency claims that records may be withheld from disclosure under FOI Act Exemption 6, the
privacy exemption, or Exemption 7, the law enforcement exemption, which includes a separate
privacy provision, have prompted considerable litigation. These cases have developed precedent
permitting agencies to withhold information that clearly would not be considered private under
common law or state invasion of privacy statutes. One of the most notable, Department of Justice
v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), stated that the FBI could
withhold criminal history information in its National Criminal Information Center (NCIC)
database, even though the information is public in the jurisdiction that submitted the data.
In Reporters Committee the Court created a legal fiction which the authors of Privacy and Access
refer to as "practical obscurity." It is the notion that although a document remains public in
government files, it is private because the chance that it will be found and disseminated is
remote. The USAO report candidly states that "there is no ‘expectation of privacy' in case file
information," but posits that "there is certainly an ‘expectation of practical obscurity' that will be
eroded through the development of electronic case files." Privacy and Access at 32.
Federal open records laws were adopted to create a right of access to government information
where none previously existed. They provide limited access to executive agency records but not
to congressional records. In Reporters Committee, the Court stated that the primary purpose of
the FOI Act is to permit the public to oversee the operations of government, and that access to
criminal rap sheets stored by NCIC did not accomplish that purpose. Similarly, as the Supreme
Court recognized recently in Los Angeles Police Department v. United Reporting Publishing
Corp., 120 S. Ct. 483, 145 L. Ed.2d 451 (1999), because the public's right of access to arrestee
and victim addresses was guaranteed only by statute, the legislature could amend the statute to
impose restrictions on that access.
In the wake of the Supreme Court decision in Reno v. Condon, 528 U.S. 141, 120 S. Ct. 665, 145
L. Ed.2d 587 (2000), the argument will likely be raised that limiting public access to court
records is necessary to protect the personal safety of litigants and others. In Condon the Court
upheld the constitutionality of the Driver's Privacy Protection Act, 18 U.S.C. §2721 et. seq.,
against a claim that Congress interfered with state decision making concerning dissemination of
information from driver's license and motor vehicle registration records. The statute orders states
to limit dissemination of such information and to give individuals the ability to bar dissemination
of information they provided the state motor vehicle department. The Court actually did not
determine whether license and registration information is private, but merely that because the
information is in interstate commerce Congress has authority to regulate its dissemination. Once
again, the only basis on which the public has a right to obtain such information from state motor
vehicle agencies is statutory.
Relying on decisions defining access under open records laws the staff came to a conclusion
which clearly is not supported by court access decisions that
The primary purpose of access to case files as articulated in case law — promoting effective
public monitoring of the courts — may be accomplished without unlimited disclosure of all
documents in case files. This consideration is especially relevant to documents in the file that are
only marginally related to the adjudication process.
Id. at 32.
There is a strong presumption under the First Amendment and common law that the public has a
right of access to court proceedings and case files. Furthermore, public access to them serves a
much broader purpose. See below at 6.Although the Supreme Court has ruled that protecting
individual privacy might justify court secrecy, it has never upheld a closure on those grounds,
and has stated that judges considering privacy claims must balance the interests of the public
against those of the movant on a case-by-case basis. Therefore, one should not analogize to
decisions and policies interpreting the open records laws.
According to Privacy and Access "[n]ew forms of access may unduly raise the privacy ‘price'
that litigants must pay for using the courts." Id. at 32. In the face of repeated rulings by the
Supreme Court that public access to court proceedings fosters public confidence in and
willingness to employ the judicial system to resolve disputes, it is striking that the USAO staff
argued that "the prospect of unlimited disclosure of personal information in case files may
undermine public confidence in the litigation process, in general, and the federal courts in
particular."
If a case file is public at the courthouse, a reasonably cautious litigant must operate under the
assumption that someone will find it and might use information it contains. If that file contains
personal information or sensitive business information counsel has a duty to protect the client's
interests by seeking a protective order pursuant to procedural rules appropriate to the type of
proceeding involved. The situation is no different if the right of access is expanded to electronic
case files available on the internet. Thus, the "privacy ‘price' " remains the same because a
reasonably cautious litigant cannot rely on "practical obscurity" to protect its interests.
For a decade or more litigants, particularly corporate litigants, have expressed concern about the
degree of public access to case documents guaranteed by the First Amendment and common law.
One solution to this problem they have employed with increasing regularity is alternative dispute
resolution to arrive at settlements while avoiding public disclosure. Federal and state judicial
entities have encouraged use of ADR, and a joint project of the National Conference of
Commissioners on Uniform State Laws and the ABA Section of Dispute Resolution is currently
drafting a Uniform Mediation Act. Media organizations including the Society of Professional
Journalists have been meeting with the drafting committee in an effort to delineate what
information related to mediation should be public, particularly when one of the parties is a
government entity. Considering that litigants now elect to use alternative means of resolving
issues that might be presented to a court, it is disingenuous to maintain that the advent of online
access will cause a significant new problem.
The Public and News Media Have A Presumptive Right To Examine Case Files in Federal Civil
and Criminal Judicial Proceedings
The public and the news media have a First Amendment right to attend judicial proceedings. The
right of access to case files is rooted in the First Amendment, common law or both, perhaps
depending on whether the case is criminal or civil, but in any case there is a strong presumption
in its favor. This is so because access to such proceedings and to the case files that underlie them
is essential if the public is to fulfill its duty to oversee the operations of the government and to
ensure continued public confidence in the judicial system.
An analysis of the public's right of access to case files must begin with an examination of the
U.S. Supreme Court's decisions holding that the public and media have a First Amendment right
to attend criminal trials. In 1980, the Court ruled that under the First Amendment, criminal trials
are presumptively open to the public and media and may be closed only to protect some interest
that outweighs the public's interest in access. A trial judge must articulate findings, on the record,
to support the closure, according to the opinion. Richmond Newspapers v. Virginia, 448 U.S.
555, 581 (1980).
Two years later, the Court said that, although states had a significant interest in protecting minor
victims of sexual assaults from the trauma of testifying in open court, trial judges must determine
on a case-by-case basis whether this interest outweighs the presumption of openness. Globe
Newspapers v. Superior Court, 457 U.S. 596 (1982). The majority concluded as well that any
closure order must be "narrowly tailored to protect that interest" without unduly infringing on
First Amendment rights.
The First Amendment right of access extends to voir dire proceedings in criminal cases. Press
Enterprise v. Superior Court (Press Enterprise I), 464 U.S. 501 (1984). It applies to preliminary
hearings in criminal cases as well. Press-Enterprise v. Superior Court (Press Enterprise II), 106 S.
Ct. 2735 (1986).
The three-part test for closure that emerges from these cases requires a judge to find that a
compelling governmental interest exists which outweighs the public's interest in access, that no
alternative to closure will protect that interest, and that the closure is no broader than necessary to
protect the interest and, in fact, will protect it. Assuming there is a compelling interest, a
reasonable alternative to closing a hearing might be to require counsel to refer to a particularly
sensitive document by an innocuous name or exhibit number, rather than to discuss its content in
open court. If no alternative will protect the governmental interest, it is not permissible to close
an entire hearing merely to prevent disclosure of a discrete piece of information among many
aired at the hearing. Furthermore, if that information is already public and closure will not protect
it, i.e. the existence of a confession, then closure is not permitted because it would not serve the
intended purpose.
In Associated Press v. U.S. (DeLorean), 705 F.2d 1143 (9th Cir. 1983), the Ninth Circuit ruled
that the public's and media's First Amendment right to attend pretrial criminal proceedings
extends to documents in a criminal case file, even if the documents have not been introduced into
evidence.
There is no reason to distinguish between pretrial proceedings and the documents filed in regard
to them. Indeed, the two principal justifications for the First Amendment right of access to
criminal proceedings apply, in general, to pretrial documents …. There can be little dispute that
the press and public have historically had a common law right of access to most pretrial
documents (citations omitted) … [and they] are often important to a full understanding of the
way in which ‘the judicial process and the government as a whole' are functioning.
Id. at 1145.
In analyzing the public's right of access and extending it to different types of proceedings, first
trials and then pretrial proceedings, the Supreme Court followed two paths. It examined whether
the type of proceeding at issue had been open to the public historically and whether public access
provided structural benefit — whether it furthered the interests of justice. The plurality opinion in
Richmond stressed the historical analysis. However, Justices Brennan and Marshall concurred in
a separate opinion focusing instead on the structural importance of access. According to Justice
Brennan, openness of judicial proceedings assures:
fair and accurate adjudication, … that procedural rights are respected, … [demonstrates] the
fairness of the law to citizens, … [acts as] ‘an effective restraint on possible abuse of judicial
power' (citing In re Oliver, 333 U.S. 257 at 270 (1948)), … [and] aids accurate factfinding.
Richmond, 448 U.S. at 584-598. All of these are essential to self government, he explained. The
Globe decision, written by Justice Brennan and joined by Justices White, Marshall, Blackmun
and Powell, states that "Underlying the First Amendment right of access to criminal trials is the
common understanding that ‘a major purpose of the Amendment was to protect the free
discussion of governmental affairs." 457 U.S. at 604 (citations omitted).
The Supreme Court has never addressed the question of whether there is a First Amendment right
of access to civil trial and pretrial proceedings. However, several federal appeals courts,
employing the reasoning of the high court's four criminal trial access decisions, have ruled that
both are presumptively open to the public.
Similarly, the Court has never ruled on public access to case files, although opponents of public
access to them frequently cite two decision, Seattle Times v. Rhinehart, 467 U.S. 20 (1984), and
Nixon v. Warner Communications, 435 U.S. 589 (1978). Neither case put before the Court the
question of whether the public had a right of access to case files.
Public access was not at issue in Seattle Times. The question, as framed in the opinion, was:
"whether a litigant's freedom comprehends the right to disseminate information that he has
obtained pursuant to a court order that both granted him access to that information and placed
restraints on the way in which the information might be used." 467 U.S. at 32 (emphasis added).
See, also, Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 162 (3d Cir.
1993). Stated another way, the Supreme Court had to decide whether the mere fact that the media
libel defendants were principally engaged in First Amendment protected activity prevented a trial
judge from prohibiting the newspapers from using discovered information as the basis for
extrajudicial statements. To answer this question "it is necessary to consider whether the
‘practice in question [furthers] an important or substantial governmental interest unrelated to the
suppression of expression.'" Id. (citations omitted)
The Supreme Court and other courts have long held that restrictions on such statements by
parties and their lawyers do not violate the First Amendment if they are narrowly tailored to
assure the fair administration of justice. The Court concluded in Seattle Times that a protective
order issued under the state equivalent of federal Rule 26(c), for "good cause" and "limited to the
context of pretrial civil discovery, … does not offend the First Amendment. Id. 467 U.S. at 37.
Because it was concerned only with the litigants' right to disseminate information, the high court
never examined the historical and structural foundations for the public's claim of a First
Amendment right of access to discovery documents.
In Nixon, news organizations sought access to White House tapes played as evidence during the
trial of Nixon administration officials on charges arising from the Watergate scandal. In it the
Court recognized that there is a common law right of access to exhibits used at trial but did not
define the limits of that right beyond stating that "the decision as to access is one best left to the
sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and
circumstances of the particular case." Id. 435 U.S. at 599.
In the instant case … there is no claim that the press was precluded from publishing or utilizing
as it saw fit the testimony and exhibits filed in evidence. There simply were no restrictions put
upon press access to, or publication of, any information in the public domain. Indeed, the press
— including reporters of the electronic media —was permitted to listen to the tapes and report on
what was heard. Reporters also were furnished transcripts of the tapes, which they were free to
comment upon and publish…. Thus, the issue presented in this case is not whether the press must
be permitted access to public information to which the public generally is guaranteed access, but
whether these copies of the White House tapes — to which the public has never had physical
access — must be made available for copying.
Id. at 609.
Rather, the Court ruled, the media would be barred from copying the tapes because Congress had
established a scheme in the Presidential Recordings and Materials Preservation Act, 44 U.S.C.
§2107, for reviewing and disseminating the Nixon tapes. Therefore, "[b]ecause of this
congressionally prescribed avenue of public access we need not weigh the parties' competing
arguments as though the District Court were the only potential source of information regarding
these historical materials. The presence of an alternative means of public access tips the scales in
favor of denying release." Id. at 606. It went on to say that "court release of copies of materials
subject to the Act might frustrate the achievement of the legislative goals of orderly processing
and protection of the rights of all affected persons." Id.
Nixon did not hold that there was no First Amendment right to access court documents. Rather,
the Court there merely held that, in a situation where there "was no question of a truncated flow
of information to the public," there was no right to physically access and copy the Watergate
tapes that had already been played in open court where transcripts of the tapes were available to
the media and the public generally.
United States v. McVeigh, 119 F.3d 806, 812 (10th Cir. 1997).
Drawing on the Supreme Court's decisions, federal appellate courts have found a public right of
access under the First Amendment, common law, statutes and court rules to documents
introduced into evidence in civil pretrial proceedings and to documents not introduced but
submitted to the court in support of various kinds of motions.
In Brown & Williamson Tobacco Co. v. Federal Trade Commission, 710 F.2d 1165 (6th Cir.
1983), cert. denied, 465 U.S. 1100 (1984), the Court lifted a trial judge's order sealing FTC
administrative transcripts and all documents submitted by the agency during pretrial proceedings.
The panel held that principles that apply when ruling on public access to judicial proceedings
apply in determining whether to permit access to court documents because "court records often
provide important, sometimes the only, bases or explanations for a court's decision." Id. at 1177.
Both the First Amendment and the common law limit judicial discretion to seal court documents,
and a judge considering imposing restrictions must determine that they would "serve an
important governmental interest; that this interest [is] unrelated to the content of the information
to be disclosed in the proceeding; and that there [is] no less restrictive way to meet that goal." Id.
at 1179. The panel went on to say, "Simply showing that the information would harm the
company's reputation is not sufficient to overcome the strong common law presumption in favor
of public access to court proceedings and records." Id.
In re Continental Illinois Securities Litigation, 732 F.2d 1302 (7th Cir. 1984), the Court adopted
the reasoning of Brown & Williamson, supra, that the policy reasons for granting public access to
criminal proceedings apply to civil cases as well. Id. at 1308. It went on to hold that the public
had a First Amendment right to examine a special litigation committee report recommending that
Continental I1linois terminate derivative actions against outside directors of the company. The
report was submitted to the trial court in support of a motion to terminate the derivative actions.
The Seventh Circuit rejected a claim that a blanket protective order and the discovery order
requiring disclosure of the report to plaintiffs negated the presumptive public right of access. It
concluded that neither of the orders, nor the "good cause" standard of Fed. R. Civ. P. 26(c),
"purports to control disclosure of material introduced as evidence in support of a motion." Id. at
1310.
In Joy v. North, 692 F.2d 880 (2d Cir. 1982), cert. denied 460 U.S. 101 (1983), the Second
Circuit recognized that "documents used by parties moving for, or opposing summary judgment
should not remain under seal absent the most compelling reasons," Id. at 893. This case, too,
involved access to a special litigation committee report used in a stockholder derivative action.
The presumption of access encompasses any documents "the judge should have considered or
relied upon." In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation,
101 F.R.D. 34, 42 (C.D. Cal. 1984), reh'r'g denied, 10 Med. L. Rep. 2430 (9th Cir. 1984)(cited
below as Petroleum Products). The First Circuit adopted the Petroleum Products view that the
right of access includes those records that a court relies on in determining the litigants'
substantive rights. Federal Trade Commission v. Standard Financial Management Corp.. No.
87-1340, 14 Med. L. Rep. 1750 (1st Cir. Oct. 6, 1987).
Once those submissions come to the attention of the district judge, they can fairly be assumed to
play a role in the court's deliberations. To hold otherwise would place us in a position of
attempting to divine and dissect the exact thought processes of judges …. [W]e rule that relevant
documents which are submitted to, and accepted by, a court of competent jurisdiction in the
course of adjudicatory proceedings, become documents to which the presumption of public
access applies.
Id. 14 Med. L. Rep. at 1754 (footnote omitted).
In Krause v. Rhoads, supra, the Sixth Circuit affirmed a trial judge's decision to unseal discovery
documents in the cases resulting from the shooting deaths of four individuals at Kent State
University in 1970. The judge had unsealed all documents that did not reveal law enforcement
investigative techniques, matters coming before a grand jury and the identities of witnesses,
"because of First Amendment interests and the historic nature of the events portrayed in the
materials concerned." Id. 671 F.2d at 217. This court stated, "We recognize that we deal here
with substantial issues involving emanations from the First Amendment such as the public's right
to know…" Id.
In In re San Juan Star, 662 F.2d 108 (1st Cir. 1981), the Court ruled that "significant but limited
First Amendment concerns are implicated by [] protective orders" issued pursuant to Rule 26(c).
Id. at 114. In determining whether the public should be granted access to discovery documents,
the court must examine the magnitude and imminence of the threatened harm, the effectiveness
of the protective order in preventing the harm, the availability of less restrictive means of doing
so, and the narrowness of the order if it is deemed necessary. Id. at 116. Before it affirmed the
trial judge's decision to deny access, the First Circuit concluded that disclosure would create a
reasonable likelihood of material harm to the defendant's right to a fair trial. The panel also
determined that the order was narrowly drawn and likely to be effective in protecting the
defendant's rights, and that alternatives to the protective order would be ineffective. Id. at 117.
The First Circuit reconsidered the issue of public access to discovery in Anderson v. Cryovac
Inc., 805 F.2d 1 (1st Cir. 1987). In that case the Court applied the "Richmond Newspapers
analysis" because it found that First Amendment interests were implicated by protective orders
issued in civil cases. It reaffirmed its earlier conclusion in San Juan Star, supra, stating that:
Although the ‘strict and heightened' scrutiny tests no longer apply, the first amendment is still a
presence in the review process. Protective discovery orders are subject to first amendment
scrutiny, but that scrutiny must be made within the framework of Rule 26(c)'s requirement of
good cause.
Cryovac, 805 F.2d at 7.
Taking a more conservative approach, the Second Circuit ruled in In re "Agent Orange" Product
Liability Litigation, 821 F.2d 139 (2d Cir. 1987), that it did not need to decide whether the First
Amendment guaranteed the public access to discovery documents because Fed. R. Civ. P. 26(c)
and Fed. R. Civ. P. 5(d) required public access. See below at 15-17. The Second Circuit ruled
that if good cause is not shown, discovery materials should not receive judicial protection and
should be open to the public for inspection. Id. at 145. It held that the rule requiring discovery
materials to be filed embodies a concern that the general public be afforded access to them, and
that access is particularly appropriate where the subject matter of the litigation is of special
public interest. In re "Agent Orange," supra, at 146.
As noted above at 5, where the public's right of access is rooted in the First Amendment closure
will be permitted only to protect a compelling governmental interest. Courts that have found only
a common law right of access to case files and other court documents have applied essentially the
same three-part test, substituting in the first part a requirement that the moving party demonstrate
a substantial governmental interest.
Public Access to Discovery Documents Is Firmly Grounded in History and Furthers Interests the
First Amendment Was Intended To Protect
Because much of the information that is perceived to be sensitive or "private" likely is contained
in discovery material, not court pleadings which are unquestionably public records, it is
necessary to discuss the public's right of access to discovery in some detail.
Public access to depositions, interrogatories and document discovery developed differently in the
common law and equity courts of England and the United States.
Depositions
The deposition was introduced into British and American chancery courts in the 18th century as a
device for perpetuating testimony. J. Story, Story's Commentaries on Equity, 719-723 (1893). It
was adapted to use in pretrial discovery by the late 19th century. Ragland, Discovery Before
Trial,18 (1932). In England, equity required that depositions be filed with the court but kept
secret until the witness testified. Then they were "published." C.C. Langdell, Discovery Under
The Judicature Acts, 1873, 1875, Part I, 11 Harv. L. Rev. 137, 144 (1897).
In this country, however, Equity Rule 69, promulgated in 1842, gave federal judges the power to
order "publication" of depositions upon filing under certain circumstances. J. Hopkins, The New
Federal Equity Rules, 122 (1933). In 1912, Rule 69 was renumbered Rule 55, and the provision
requiring a judge to order publication was abolished. Thereafter, depositions were deemed public
when filed. Id. at 264.
The circuit courts long ago acknowledged that the public has a right of access to depositions. In
1838, the Southern District of New York adopted Rules 113 and 114 which required all
depositions to be filed with the court. See Louis Werner Stave Co. v. Marden, Orth & Hastings
Co., 280 F. 601, 606 & n. 3 (2d Cir. 1922). In that case, the court stated that because the parties
knew the contents of depositions, "there was not the slightest reason why the deposition should
not be placed upon the files of the court and become accessible to the litigants, and for that
matter to the public." Id. at 604.
More than a hundred years ago, the District Court in Manhattan ruled that the dangers of
restricting public access far outweighed any risks from a right of public access:
While it is possible that in some cases the power to take testimony may be abused for the purpose
of publishing scandalous and irrelevant matter, yet on the other hand the power of either party to
forbid the opening of depositions until the trial may lead to abuses much worse, and to surprise
and failure of justice at trial.
U.S. v. Tilden, 28 Cas. 169, 171 (S.D.N.Y. 1878).
That courts in other parts of the country agreed depositions were public court documents is
evident in proceedings of the drafting committee that formulated the Federal Rules of Civil
Procedure adopted in 1938. Some members of the committee stated that the public had the right
to attend the taking of depositions. Significantly, this discussion arose during consideration of
Draft Rule 33(c), which would have permitted a deponent to request appointment of a master to
preside over depositions to prevent abuse of this discovery tool. The idea of sealing depositions
was not mentioned as a solution.
The preliminary draft of the rules published in May 1936 provides further evidence that the
drafters presumed that depositions would be public. Draft Rule 32(b), Depositions Before a
Master, stated: "… the court in which the action is pending may, on motion promptly made by
such party and on good cause shown, make an order directing that such deposition shall be taken
before a standing master of the court or a special master appointed for the purpose, …"
Committee member Edson R. Sunderland annotated his copy of this preliminary draft. Following
the passage above, he wrote: "… and, in proper cases, that the examination shall be held behind
closed doors with no one present except counsel and parties to the record and that after being
sealed the deposition shall be opened only by order of the court." Sunderland's Preliminary Draft
(annotated), May 1936.
Handwritten annotations in committee member Edmund M. Morgan's printed copy state: "at any
rate ct. should have power to order dep. to be taken privately and to be sealed to avoid dep. for
publicity only." Morgan's Preliminary Draft (annotated), May 1936.
As adopted, Rule 30(b), Orders for Protection of Parties and Deponents, stated:
… upon motion seasonably made … and upon notice and for good cause shown, the court in
which the action is pending may make an order that the deposition shall not be taken, … or that
the examination shall be held with no one present except the parties to the action and their
officers or counsel, or that after being sealed the deposition shall be opened only by order of the
court, or that secret processes, developments, or research need not be disclosed… .
Rules of Civil Procedure for the District Courts of the United States, 76th Cong., 1st Sess. (1938)
at 39.
In 1970, as part of a general reorganization of the discovery rules, this provision was relocated to
Rule 26(c).
Rule 30(f) required that depositions be "promptly" filed with the court clerk, and therefore they
are public.
Interrogatories
At about the time depositions came into use in England and the United States, interrogatories
were introduced in English chancery as devices for supplementing pleadings. Ragland, supra, at
11. Like depositions, interrogatories were intended to aid litigants in discovering the testimony of
adverse witnesses. Accordingly, they were filed with the court, but kept secret until the witness
had been cross-examined at trial. They were then made public. Langdell, supra, 11 Harv. L. Rev.
at 144.
Federal Equity Rule 58 governing the taking and use of interrogatories followed the British
practice. J. Hopkins, supra, at 269. The substance of Rule 58 was restated in Rule 33 of the
Federal Rules of Civil Procedure. H.R. Doc. 588, 76th Cong., 1st Sess. at 31 (1938). Rule 33
allowed parties to serve written interrogatories and required the service of answers upon the
submitter. It lacked an explicit filing requirement, but because answers had to be served, filing
was required under Rule 5(d).
Document Discovery
Document discovery was also developed in Britain at chancery as a supplement to the pleadings.
Ragland, supra, at 11. A litigant seeking documents through discovery had to file a bill for
discovery in the Chancery Court. Id. at 12. Discovery at law and in equity were combined and
reformed with the passage of the British Judicature Acts in 1873, which provided for
interrogatories, depositions and document discovery. Id. at 18.
Although court procedure in England and in many of the United States permitted document
discovery early in the 20th century, there was no similar procedure in federal courts prior to
adoption of the Federal Rules of Civil Procedure. Pike and Willis, The New Federal
Deposition-Discovery Procedure: II, 38 Colum. L. Rev. 1436, 1456 (1938). Lacking experience
with document discovery, the Federal Rules drafters examined English and state procedure for
guidance in formulating a new document discovery rule. In England and many states, document
discovery could be had only by order of the court, Ragland, supra, at 286-290 (1932); 3 Searl, A
Treatise on Pleading and Practice at Law and in Equity in the State of Michigan § 1337 at 337
(1934). In the new Federal Rules of Civil Procedure, Rule 34 stated: "… the court in which an
action is pending may (1) order any party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party …" Like the rule governing interrogatories,
Rule 34 lacked a filing requirement, although any papers which had to be served on parties also
had to be filed under Rule 5(d).
Amendments made in 1946 brought document discovery under Rule 30(b) providing for
protective orders. See Notes of Advisory Committee On Rules (1946). Under Rule 30(b), a party
seeking to seal a document had to demonstrate "good cause." Thus, discovered documents, like
depositions, were public unless sealed by a judge.
The Filing Requirement
The Advisory Committee on Rules for Civil Procedure wrestled with the issue of public access at
some length before agreeing on the wording of Fed. R. Civ. P. 5(d), the general filing
requirement which applied to interrogatories and document discovery, as well as pleadings. It
considered three proposals — one designed to keep litigation private and two that permitted
public access to discovery materials.
The first version would have required filing only if an adverse party moved for filing or when the
case went to trial. It applied to the "summons and each pleading … [and] all papers used or read
on either side in connection with the application for an order or a hearing thereon…." The
penalty for failing to comply was dismissal or default judgment.
The second version stated, the complaint shall be filed with the court before the summons is
issued. All other pleadings and all motions provided for in Rule 16 (governing pretrial procedure)
shall be filed with the court within the time provided in these rules for serving and filing such
pleadings and motions. All other papers in the action shall be filed with the court immediately
after service thereof. Filing pursuant to this proposal made papers public at once "for the
purposes of directing speedy trial or exercising other control over the controversy, and as notice
to all persons."
The third version was very much like the second, but permitted the judge to impose sanctions for
failure to comply with the filing requirement.
The Advisory Committee recommended that filing be required, following the precedent set by
the Federal Rules of Equity, Report of the Advisory Committee on Rules for Civil Procedure, 16
(1937). The rule approved by Congress stated: "(d) FILING. All papers after the complaint
required to be served upon a party shall be filed with the court either before service or within a
reasonable time thereafter." Fed. R. Civ. P. 5(d)(1938). Because documents were deemed
published when filed, depositions and interrogatories were available to the public under the 1938
rules. Document discovery was impliedly opened to the public as a result of the 1946
amendments.
"[T]he first comprehensive review of the discovery rules undertaken since 1938" took place in
1970. H.R. Doc. 291, 91st Cong., 2d Sess., 17 (1970). In addition to amending the discovery
rules, Rule 5 was amended in an effort to streamline civil discovery. Id. at 20. Amended Rule
5(a) made it clear that the filing requirement applied to those papers responsive to a document
request. It read: "(a) Service; When Required. Except as otherwise provided in these rules …
every paper relating to discovery required to be served upon a party unless the court otherwise
orders, … shall be served upon each of the parties." Recognizing that answers might be
voluminous or the number of parties great, the Advisory Committee stated that "the court is
empowered to vary the requirement if in a given case it proves needlessly onerous." Id. at 21.
The discovery rules were rearranged to consolidate general provisions. Those dealing with
protective orders were moved to Rule 26 and became applicable to all available discovery
devices. Id. at 20. The requirement that a party seeking documents support the request with a
showing of good cause was dropped from Rule 34. This change encouraged "extrajudicial
discovery with a minimum of court intervention." Id. at 18.
These changes streamlined discovery by reducing the need for judicial participation and, for the
first time, clearly brought document discovery under the general filing provisions, thereby
making it public.
The Advisory Committee reconsidered Rule 5(d) in 1978 and proposed the following
amendment: "[U]nless filing is ordered by the court on motion of a party or upon its own motion,
depositions upon oral examinations and interrogatories and requests for admission and the
answers thereto need not be filed unless and until they are used in the proceedings." Preliminary
Draft of Proposed Amendments to the Federal Rules of Civil Procedure, 77 F.R.D. 622 (1978).
According to the note accompanying the proposal, the change was needed because of "the cost of
providing additional copies of such materials for the purpose of filing … and the … serious
problems of storage in the clerk's office in some districts," Id.
Reaction to the proposed amendment was wide-ranging and critical, reflecting concern that the
amendment would cut off public access to discovery materials as provided under Rule 5(a) and
5(d). Judge Walter R. Mansfield, chairman of the Advisory Committee, wrote of the reaction:
It was pointed out that unless the products of discovery were filed in multi-party litigation, those
parties who did not attend a deposition would often have difficulty gaining access to a copy.
Representatives of the press complained about the ‘unconscionable burden' of obliging them to
secure a court order for access. Various organizations complained about the limitation on public
access. Public interest lawyers argued that the lack of a file copy would increase their expense. It
was objected that discovery materials form a part of the official record and should be on file with
the court.
H.R. Doc. No. 306, 96th Cong., 2d. Sess., 15 (1980).
The Advisory Committee withdrew the proposal in 1979. Id. However, 18 chief District Court
judges sought reconsideration of the proposal because of the cost and inconvenience of filing and
because "some districts had already adopted local rules dispensing with the requirement that
discovery materials be filed." Id. The Advisory Committee settled on a version of Rule 5(d)
which required prompt filing unless dispensed with by the court on a case-by-case basis:
(d) Filing — All papers after the complaint required to be served upon a party shall be filed with
the court either before service or within a reasonable time thereafter, but the court may on motion
of a party or on its own initiative order that depositions upon oral examination and
interrogatories, requests for documents, requests for admission, and answers and responses
thereto not be filed unless on order of the court or for use in the proceeding.
H.R. Doc. 306, 96th Cong, 2d Sess., 3 (1980). The Advisory Committee note accompanying the
proposal stated that the revised rule required the prompt filing of discovery materials because
they "are sometimes of interest to those who may have no access to them except by a requirement
of filing, such as members of a class. litigants similarly situated. or the public generally." Id. at
20.
Concern arose in Congress that the amended rule, approved by the Supreme Court, would prompt
local rules waiving the filing requirement. Rep. Robert F. Drinan, chairman of the House
Subcommittee on Criminal Justice, and Sen. Edward M. Kennedy, chairman of the Senate
Committee on the Judiciary, sought assurance that this would not happen. In response, the
Director of the Administrative Office of the U.S. Courts, William Foley, wrote that the
amendment would not have the effect of allowing courts to routinely grant exceptions to filing. In
a letter to Sen. Kennedy dated Aug. 26, 1980, Foley stated:
The rule does contemplate that relief from the requirement of filing unnecessary discovery
materials will be authorized on a case-by-case basis and then only when the court has determined
that it is unlikely that the proceedings will be of interest to the general public, members of a
class. or litigants similarly situated.
(emphasis added). With these assurances, Congress approved the amendment.
Local rules of many federal District Courts, including the D.C. District Court, however, adopt the
position taken in the 1978 draft of Fed. R. Civ. P. 5(d) that filing is required only when ordered
by the judge. The comment accompanying the D.C. rule states:
Due to the considerable costs to the parties of furnishing discovery material and the serious
problems encountered with storage, this court is amending Local Rule 107(a). The amendment
does not change the current practice or procedure of the court. The present rule requires that
unless the judge assigned to the case enters a nonfiling of discovery order, discovery material is
filed with the court. Since a majority of judges on the court presently enter orders for the
nonfiling of discovery, the new rule would require the filing of discovery material only if an
order is entered by the judge assigned to the case directing the filing of discovery material.
Nothing in this rule precludes a party or other interested person from requesting of the judge
assigned, that discovery materials be filed with the Clerk of Court in a particular case.
In opposing disclosure of discovery material, litigants often cite local rules permitting nonfiling
and criticize Rule 5(d). But, as the Second Circuit noted in In re "Agent Orange":
Appellants disparage Rule 5(d) as merely a housekeeping rule, but an examination of the notes
accompanying Rule 5(d) reveals substantive policy considerations underlying the Rule…. The
Advisory Committee notes make clear that Rule 5(d), … embodies the Committee's concern that
class action litigants and the general public are afforded access to discovery materials whenever
possible. Moreover, we note that access is particularly appropriate when the subject matter of the
litigation is of especial public interest… .
supra, 821 F.2d at 146.
In sum, discovery has long been open to the public under the Federal Rules of Equity and the
Federal Rules of Civil Procedure. Various provisions in the rules and transcripts of Advisory
Committee meetings since 1936 show that the drafters of the modern rules took public access
into account in fashioning the discovery and filing rules.
The Right of Privacy Is Found in Common Law of Recent Origin
In contrast to the public right of access to trials, which Chief Justice Burger traced back to early
British common law, the concept of a right of privacy in the United States traces its origin to an
article written by Louis D. Brandeis and Samuel D. Warren, 4 Harv. L. Rev. 193 (1890). They
described it as the "right to be left alone." Dean Prosser elaborated on their work cataloguing
four distinct torts encompassed by the right of privacy: intrusion, publication of private or
embarrassing facts, statements that place a person in a false light, and misappropriation. W.
Prosser, Handbook of the Law of Torts, 804-14 (4th Ed. 1971). For our purposes only publication
of private facts is relevant.
A private facts or "intimacy" claim arises when:
One who gives publicity to a matter concerning the private life of another is subject to liability to
the other for invasion of privacy, if the matter publicized is of a kind that:
(a) would be highly offensive to a reasonable person and
(b) is not of legitimate concern to the public.
Restatement (Second) of Torts, §652D. Furthermore, if information, even intimate information,
is already in the public domain, a new disclosure of that information would not be actionable.
There are a few decisions in which state courts, notably in California, have found that publication
of information about long-past crimes may give rise to private facts claims. See, e.g., Briscoe v.
Reader's Digest, 483 P.2d 34 (Cal. 1971); Melvin v. Reid, 112 Cal. App. 285 (1931). But other
states have concluded that when information is of public record it cannot be the basis for such a
claim, even after many years in obscurity. See, e.g. Jenkins v. Bolla, 600 A.2d 1293 (Pa. 1992);
Roshto v. Hebert, 439 So.2d 428 (La. 1983); Montesano v. Las Vegas Review, 668 P.2 1081
(Nev. 1983); Westphal v. Lakeland Register, 2 Med.L.Rptr. 2262 (Fla. Dist. Ct. 10th Cir. 1977);
Sidis v. F-R Publishing Co., 113 F.2d 806 (2d Cir. 1940).
Not all states have recognized either common law or statutory protection against publication of
private facts. The New York Court of Appeals has ruled numerous times that the only form of
invasion of privacy recognized in state law is misappropriation, codified in Civ. Rights §§50 &
51. See, e.g., Arrington v. New York Times, 56 N.Y.2d 284, 434 N.E.2d 131 (N.Y. 1982), cert.
denied, 103 S. Ct. 787 (1983). It does not recognize private facts claims, even under common
law.
Because the common law right of privacy is inherently a matter of state law and the 50 states
have taken significantly different positions on whether and to what extent they protect that
interest; and because court records are deemed to be public and disclosure of such documents
generally cannot be an invasion of privacy, even in states that recognize private facts claims, the
federal judiciary should exercise extreme care in fashioning rules governing electronic access to
case files, if it adopts rules at all.
Conclusion
There is a strong presumption that court records are public and any claim that they should be
withheld must be assessed on a case-by-case basis by the judge presiding over the matter. If
documents are public at the courthouse, the concept of "practical obscurity" will never justify
denial of online access under the Supreme Court's three-part test for closure. Even if the movant
could demonstrate either a compelling or substantial interest that outweighs the public's interest
in access, s/he would never be able to demonstrate that denial of online access will prevent the
perceived harm.
In proposing that some restrictions on access might be necessary, Privacy and Access posits that
there are dangers to permitting the general public to obtain access to case files over the internet,
but does not offer even anecdotal evidence to support these contentions. It is always easier to
keep information secret in the name of preventing harm than it is to punish those who use
legally-obtained information to harass or injure. But, although government agencies often resort
to such tactics in the open records context, the Supreme Court and lower federal appellate courts
have never found that speculation as to dangers that might arise from court openness were
sufficient to justify secrecy. See, e.g., New York Times v. United States, 403 U.S. 713, 725-6
(1971)(Brennan, J. concurring)("The entire thrust of the Government's claim … has been that
publication of the material … ‘could,' or ‘might,' or ‘may' prejudice the national interest …. But
the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon
surmise or conjecture that untoward consequences may result.")
Creating differing levels of access depending on the status of the person seeking it and/or the
means used to obtain case information will work a significant hardship on members of the bar,
the public, and the news media. In the absence of any hard evidence that granting access will
cause harm that cannot be prevented by means less restrictive of First Amendment and common
law interests, the Judicial Conference should not adopt restrictions on internet access to case
files. Rather it should rely on mechanisms already in place by which litigants can seek protective
orders to ensure that sensitive information does not become public.
In sum, if the Judicial Conference adopts a uniform national policy it should be that all
documents in case files that are open to the public at the courthouse should be available to the
public online as well. To the extent that litigants believe that specific information in case files
should be kept secret to protect personal privacy or sensitive proprietary information, it is their
duty to demonstrate by the appropriate standard that the trial judge should issue protective orders.
Trial judges, in turn, should be directed that they are to take the benefits of public access into
consideration in ruling on such motions and that the public and news media have standing to
oppose requests for protective orders. All of this is consistent with rulings of the Supreme Court
and lower federal appellate courts.
No. 211
1/26/01
The Reporters Committee for Freedom of the Press
Arlington, VA
The Reporters Committee for Freedom of the Press, the Society of Professional Journalists, the
D.C. Professional Chapter of the Society of Professional Journalists, and Radio-Television News
Directors Association submit these comments in response to the Federal Judiciary's Request for
Comment on Privacy and Public Access to Electronic Case Files. The Judicial Conference is
considering various policies regarding public access to electronic records, and the Administrative
Office of the United States Courts [collectively, "the Judiciary"] is accepting Commentary.
Although the Judiciary has not proposed policies that would allow such "normal" access to
criminal case files or possibly other types of files, the signatories to these Comments urge the
Judiciary to reconsider its options and to permit the same access via the Internet or other
electronic technologies, for all types of files, that citizens have when they walk into the
courthouse. We also request the opportunity to testify at the public hearing when such a hearing
is held.
The Signatories
The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association
established in 1970 by news editors and reporters to defend the First Amendment and freedom of
information rights of the print and broadcast media. The Reporters Committee assists journalists
by providing free legal information via a hotline and filing amicus curiae briefs in cases
involving the interests of the news media. The Committee produces several publications to
inform journalists and media lawyers about media law issues, including a quarterly magazine,
The News Media & The Law, a bi-weekly newsletter, News Media Update, as well as several
informational pamphlets and reports. The Committee is currently producing a series of booklets
regarding court secrecy. The first installment, Anonymous Juries, was published in November
2000.
The Society of Professional Journalists is dedicated to improving and protecting journalism. It is
the nation's largest and most broad-based journalism organization, dedicated to encouraging the
free practice of journalism and stimulating high standards of ethical behavior. Founded in 1909
as Sigma Delta Chi, SPJ promotes the free flow of information vital to a well-informed citizenry;
works to inspire and educate the next generation of journalists; and protects First Amendment
guarantees of freedom of speech and press.
The D.C. Professional Chapter of the Society of Professional Journalists is among the largest and
most diverse of SPJ's chapters. Among its more than 350 members are reporters and editors who
cover legal affairs and the federal government for print, electronic and online media serving
national and local audiences all over the United States.
The Radio-Television News Directors Association ("RTNDA"), based in Washington, D.C., is
the world's largest professional organization devoted exclusively to electronic journalism.
RTNDA is made up of more than 3,000 news directors, news directors, news associates,
educators and students in radio, television, cable and other electronic media in over 30 countries.
Founded as a grassroots organization in 1946, RTNDA's purpose was to set standards of
newsgathering and reporting. Although news techniques and technologies have changed since
the early years of its founding, RTNDA's commitment to encouraging excellence in the
electronic journalism industry and upholding First Amendment freedoms remains the same.
Purpose of these Comments
We have reviewed the Request for Comment on Privacy and Public Access to Electronic Case
Files [hereinafter "the Request for Comment"]. We explain below why electronic access to
records would be beneficial to the public and why limitations on public access would not deter
any perceived infringements upon privacy. We raise concerns that some of the proposed policies
would limit access to records that clearly serve the public interest. We also raise concerns that
restrictive policies would violate First Amendment law.
Discussion
A. There would be great benefits to improved access.
Case files should be available on line to the same extent they are available at the courthouse.
On-line access to court records would have numerous benefits that result from the free flow of
information.
1. Benefits to the public via the news media.
First, electronic access to court records allows journalists and other members of the public to
obtain information without having to appear at the courthouse, which can be vital in rural areas.
Elliot Grossman, a reporter in Pennsylvania, gave the following example:
I'm a reporter for The Morning Call, a daily newspaper based in Allentown, Pennsylvania. We're
the state's third-largest daily, about 170,000 Sunday circulation.
My primary responsibility is to cover federal courts. Online access to case files would help me
and my newspaper on a daily basis. It would make me much more effective and efficient. Here's
why: We're primarily interested in the U.S. District Court for Eastern Pennsylvania. It is based in
Philadelphia. Though the district covers about eight counties with courtrooms in four locations, it
has only one file room - - in Philadelphia. This puts us at a great disadvantage because I'm based
in Allentown in the northern end of the district, 65 miles from Philadelphia. That's nearly three
hours round trip. You could argue that I should be based in Philadelphia in the southern end of
the district. But if I were, then I'd also be handicapped because many of our cases are heard in the
northern end of the district. So I end up being as resourceful as I can in obtaining papers, mostly
by asking lawyers and judges to send me copies or making the long drive to Philadelphia. Many
lawyers and judges, however, decline to send me papers.
In the last year in the Eastern Pennsylvania district, websites for court dockets, opinions and
indictments have been upgraded, helping me tremendously. Similar access to case files would be
the next logical step.
As you know, case files are crucial to court reporters. I cannot write a story about a lawsuit being
filed without having the complaint. And I cannot write about motions being made in that suit
unless I have copies of the motion papers. So I spend a lot of time getting those papers.
Online access also would help when we need access to case files in court districts that are even
farther away.
Other reporters, when asked about the benefits of electronic access by the signatories hereto, cite
to the ability to obtain information after business hours and on weekends. It would also allow
access when there is substantial demand for a particular file or when it is "checked out" to
chambers. The recent example of the Bush-Gore election cases in Florida demonstrated how both
media personnel and private individuals may seek records simultaneously. The public has widely
praised the Florida courts in the aftermath of the recent election for posting their election-related
decisions on the Internet at the same time they became available at the courthouse. This allowed
all interested persons, whether media or ordinary citizen, to access the court opinions without
delay.
Reporters also say that electronic access helps them to be more accurate, as they are able to
obtain more relevant information in less time. Furthermore, because journalists are not permitted
to bring recording devices into federal courtrooms, having motions, orders and possibly even
transcripts available on-line would go a long way toward improving the accuracy of news
journalism. Reporters also help their communities through investigative reporting. Electronic
access to court records will help reporters further serve their communities.
Comments submitted by the Newspaper Association of America, The Washington Post Company
and other news entities have listed numerous examples of how on-line access has aided the news
media, and we endorse their examples. We urge the Judiciary to consider those examples in
analyzing the importance of efficient public access to court records.
2. Information contained in court records is of vital public interest.
Foster care is generally administered by individual states, but information about potential foster
parents may be discovered in cases filed in either state or federal courts. Although court records
may contain information about abusive homes, no one person has the time or ability to search
each and every written record stuffed in every file cabinet scattered about all the courthouses in
the nation to ascertain which homes are safe and which might potentially present a danger to a
child's safety. But if all such records were electronically available, any person could quickly and
thoroughly search names, addresses and other relevant details to determine whether foster parents
have a record of abusive behavior. The need for access to such information is especially critical
when abusers move across state lines in an effort to avoid detection, taking advantage of the new
community's lack of information about their past.
A case from Baltimore, Md., exemplified how people try to hide their background when they
cross state lines. Developer Neil Fisher was going to receive land to build a Ritz2 Eventually,
Ritz3 The community may never have known about his record if they hadn't been able to check
the court records. In a case where access to information is time sensitive, more immediate access
becomes even more necessary.
Public access to court records would aid not only journalists but also concerned citizens or
advocacy organizations to monitor such activities, as watchdogs, both helping to ensure public
safety and increasing confidence in the government's actions.
The newspaper chronicled several persistent drunk drivers who would receive a mere slap on the
wrist from county judges and be let loose on the roads. The public has an interest both in
knowing who drives drunk (to avoid them or stop them) and how the judges treat drunk drivers
(to determine whether they wish to take action for stronger DWI laws or new judges). Such a
story is obviously faster and easier to compile with electronic access to records. Although the
drunk drivers might claim that they have a privacy interest in keeping their drunk driving history
a secret, there is clearly a much stronger public interest in knowing how chronic drunk drivers are
treated by the courts.
3. It is important to establish a policy of openness now, before courts transition into a fully
electronic system.
In the future, it is likely that all records will be kept electronically rather than on paper. As more
and more courts accept electronic filings, and as technology advances to permit greater electronic
capacity for memory and storage, court records will slowly but surely transition to an
all-electronic format. As noted below, some state courts have already put their files on line, and
there is no evidence that any harm has resulted. It would set a dangerous precedent to begin to
limit public access to electronic records now, as it would surely lead to greater limitations on
public access to records in the future.
B. There is a strong presumption of access to court records.
1. Current law supports openness.
Under current law, the public is entitled to access to court records of all types. There is no
requirement that a citizen have a particular purpose for reviewing records, nor is there a
requirement that a citizen be limited to using information for a particular purpose. The records
are readily available for inspection at the courthouse, and any citizen may have access to court
records. The only exceptions are records that have been sealed or otherwise deemed confidential.
In fact, a presumptive right of access to court documents has been affirmed numerous times by
many different courts. See, e.g., Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978)
(finding a common law right of access to judicial records); Republic of Phil. v. Westinghouse
Elec. Corp.,949 F.2d 653 (3d Cir. 1991) (right of access to trial records); Globe Newspaper Co.
v. Pokaski, 868 F.2d 497 (1st Cir. 1989) (right of access to trial records); Rushford v. New
Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (right of access to documents filed
with a summary judgment motion); Anderson v. Cryovac, 805 F.2d 1 (1st Cir. 1986) (stating that
there is a long-standing presumption in the common law that the public may inspect judicial
records); Associated Press v. U.S. (DeLorean), 705 F.2d 1143 (9th Cir. 1983)(finding a First
Amendment right of access to court records); Brown & Williamson Tobacco Co. v. Federal
Trade Commission, 710 F.2d 1165 (6th Cir. 1983), cert. denied, 465 U.S. 1100 (1984) (noting a
First Amendment and common law right of access); United States v. Myers (In re Nat'l
Broadcasting Co.), 635 F.2d 945 (2d Cir. 1980) (strong presumption of a right of access); Globe
Newspaper Co. v.Fenton, 819 F. Supp. 89 (D. Mass. 1993) (right of access to court record
indexing system).
As Judge Winter noted:
The presumption of access is based on the need for federal courts,
although independent -- indeed, particularly because they are
independent -- to have a measure of accountability and for the
public to have confidence in the administration of justice. Federal
courts exercise powers under Article III that impact upon virtually
all citizens, but judges, once nominated and confirmed, serve for
life unless impeached through a process that is politically and
practically inconvenient to invoke. Although courts have a number
of internal checks, such as appellate review by multi-judge
tribunals, professional and public monitoring is an essential feature
of democratic control. Monitoring both provides judges with
critical views of their work and deters arbitrary judicial behavior.
Without monitoring, moreover, the public could have no
confidence in the conscientiousness, reasonableness, or honesty of
judicial proceedings. Such monitoring is not possible without
access to testimony and documents that are used in the
performance of Article III functions.
U.S. v. Amodeo, 71 F.3d 1044, 1048 (2d Cir.1995).
The U.S. Supreme Court has never explicitly ruled on public access to case files, although
opponents of public access to them frequently cite two decisions, Seattle Times v. Rhinehart, 467
U.S. 20 (1984), and Nixon v. Warner Communications, supra. Neither case put before the Court
the question of whether the public had a right of access to case files.
Public access was not at issue in Seattle Times. The question, as framed in the opinion, was:
"whether a litigant's freedom comprehends the right to dis-seminate information that he has
obtained pursuant to a court order that both granted him access to that information and placed
restraints on the way in which the information might be used." 467 U.S. at 32 (emphasis added).
See, also, Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 162 (3d Cir.
1993).
In Nixon, news organizations sought access to White House tapes played as evidence during the
trial of Nixon administration officials on charges arising from the Watergate scandal. In it the
Court recognized that there is a common law right of access to exhibits used at trial but did not
define the limits of that right beyond stating that "the decision as to access is one best left to the
sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and
circumstances of the particular case." Id. 435 U.S. at 599. The Court later noted:
In the instant case … there is no claim that the press was precluded from publishing or
utilizing as it saw fit the testimony and exhibits filed in evidence. There simply were no
restrictions put upon press access to, or publication of, any information in the public
domain. Indeed, the press - - including reporters of the electronic media - - was permitted
to listen to the tapes and report on what was heard. Reporters also were furnished
transcripts of the tapes, which they were free to comment upon and publish…. Thus, the
issue presented in this case is not whether the press must be permitted access to public
information to which the public generally is guaranteed access, but whether these copies
of the White House tapes — to which the public has never had physical access — must be
made available for copying.
Id. at 609.
Rather, the Court ruled, the media would be barred from copying the tapes because Congress had
established a scheme in the Presidential Recordings and Materials Preservation Act, 44 U.S.C.
§ 2107, for reviewing and disseminating the Nixon tapes. Therefore, "[b]ecause of this
congressionally prescribed avenue of public access we need not weigh the parties' competing
arguments as though the District Court were the only potential source of information regarding
these historical materials. The presence of an alternative means of public access tips the scales in
favor of denying release." Id. at 606. The Court went on to say, "[our] release of copies of
materials subject to the Act might frustrate the achievement of the legislative goals of orderly
processing and protection of the rights of all affected persons." Id. Nixon did not hold that there
was no First Amendment right to access court documents. Rather, the Court there merely held
that, in a situation where there "was no question of a truncated flow of information to the public,"
there was no right to physically access and copy the Watergate tapes that had already been played
in open court where transcripts of the tapes were available to the media and the public generally.
United States v. McVeigh, 119 F.3d 806, 812 (10th Cir. 1997).
Any judicial policy should begin with the assumption that there is a right of access. In a
particular case where a litigant contests the availability of information, the court may evaluate
whether his privacy interests outweigh the right of access in that particular case. The procedure
for doing so is already in existence via sealing orders or protective orders. However, a sweeping
policy that attempts to preemptively determine which materials should be public and which
should not would inevitably be broadly drawn and would limit access to information that would
otherwise be available to the public.
Some commentators argue that there is no long-standing history of public access to court records
via the Internet, and thus the Judiciary should not feel compelled to provide such access. Such an
argument is flawed in light of the legal analysis used to evaluate the right of access. If the
presumption is that there should be access to court records, then the Judiciary should presume
that the public should have access unless opponents can demonstrate a compelling reason to limit
access. There is clearly a history of access, without regard to any particular medium. Further, any
limitations on access should be narrowly tailored to ensure that materials are not unjustly
withdrawn from meaningful public scrutiny. For this reason and for the reasons stated below, we
support policies that allow the broadest electronic access to records, allowing for traditional
protective orders when circumstances truly require secrecy, to be determined on a case-by-case
basis.
2. Privacy interests are insufficient to overcome the presumption of openness.
The language of the Judiciary's Request for Comment implies that such quick and efficient
access to court records would somehow create an invasion of privacy or otherwise result in
negative consequences. Such an assumption is flawed.
First, court records of all types, in all cases, should always be available to the public so that the
public may monitor how court officials perform their duties. Judges and other court personnel are
public employees. Their conduct is subject to public scrutiny and they may be held accountable
for improper or injudicious actions. See, e.g., In re T.R., 556 N.E.2d 439, 453 (Ohio 1990)
("Since Judge Solove is an elected official, the public has a right to observe and evaluate his
performance in office"). The only way for the public to fully and fairly evaluate the performance
of court personnel is to review court records and to have full access to court records.
Second, those who take advantage of the public judicial system for the resolution of civil
disputes place themselves and their claims in a public forum. To the extent a litigant places
personal information about himself in the public record, the litigant has no expectation of privacy
in such information. If a litigant has privacy concerns regarding a particular document, he may
request a protective order or sealing order. Furthermore, litigants have the option of using private
alternative dispute resolution, which lets them preserve their privacy, if they so desire. Thus, any
information that is contained in a court record is not subject to a privacy interest.
Third, those who are haled before the courts in criminal matters may not properly assert a privacy
interest that invalidates public access to those court records. A criminal defendant has a
constitutional right to a public trial, as we as a nation believe that a public trial ensures a fair
trial. See U.S. Const. Amend. VI. A public trial, however, means that any information that the
accused may submit to the court becomes a public record. To the extent the accused submits
information about himself to the court, he has no expectation of privacy in that information.
More importantly, however, is the fact that "The People" are the complainants in a criminal
proceeding. The public has an interest - - a strong interest - - in ensuring that those who commit
crimes are properly convicted and also in ensuring that those who are innocent are released.
Openness ensures that prosecutors do not abuse their power and generally allows the public to
see whether the government employees properly and efficiently serve the public interest.
Further, once a criminal is convicted, the public has an interest in following that person's
behavior for its own safety and protection.
Megan's Laws, the new genre of law that discloses the residences of convicted child molesters, is
a prime example of the public's interest in information that may threaten the privacy of a
convicted felon. If a convicted child molester moves into a neighborhood, its residents have
access to information so that they may take steps to protect their children. While the disclosure of
such information may be embarrassing for the convicted child molester, the public's right to
know of the molester's criminal history is substantially stronger than the molester's interest in
keeping such information private. Megan's Laws have been passed by the federal government and
every state.
The Judiciary may also seek to protect the privacy interests of victims or witnesses in criminal
proceedings. Although the Judiciary's concerns are well grounded, they are misplaced. The
American judicial system is premised on the pursuit of truth. We presume that the accused is
innocent until proven guilty beyond a reasonable doubt. We do not allow evidence or testimony
to be admitted unless there are adequate indicia of reliability, foreclosing the possibility of
convictions based upon mere rumor, hearsay or simple dislike of the accused. Such pursuit of
the truth requires that the accused be permitted to confront and cross-examine his accuser,
including victims and witnesses. It also requires that the public be informed of the testimony of
victims and witnesses so that other members of the community with pertinent, relevant
information may come forward and contribute their knowledge. Richmond Newspapers v.
Virginia, 448 U.S. 555, 596-97 (1980) (Brennan, J., concurring) ("Public trials come to the
attention of key witnesses unknown to the parties"); San Bernadino County Dep't of Pub. Soc.
Servs. v. Superior Court, 283 Cal. Rptr. 332, 341 (Ct. App. 1991) (reasoning that "open
proceedings discourage perjury and might encourage other witnesses to come forward which in
turn leads to more accurate fact-finding"). The testimony of victims and witnesses must be
publicly scrutinized to ensure that their evidence is not politically motivated, based on hearsay, or
otherwise untruthful.
[One] great right is that of trial by jury. This provides, that neither life, liberty nor
property, can be taken from the possessor, until twelve of his unexceptionable
countrymen and peers of his vicinage, who from that neighbourhood may
reasonably be supposed to be acquainted with his character, and the characters of
the witnesses, upon a fair trial, and full enquiry, face to face, in open Court, before
as many of the people as chuse [sic] to attend, shall pass their sentence upon oath
against him. . . .
Richmond Newspapers v. Virginia, 448 U.S. at 568-69 (citing 1 Journals 107). "Without
publicity, all other checks are insufficient: in comparison of publicity, all other checks are of
small account. Recordation, appeal, whatever other institutions might present themselves in the
character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality,
as checks only in appearance." Id. at 569 (quoting 1 J. Bentham, Rationale of Judicial Evidence
524 (1827)).
Public access to court records, therefore, is as much a vital and necessary factor in the proper
functioning of our criminal justice system as the Rules of Evidence. The vague assertion of
"privacy" should not now suffice to reverse hundreds of years of openness in the American
justice system.
Finally, this issue was addressed recently by the California Court of Appeal in Hurvitz v.
Hoefflin, 2000 Cal. App. LEXIS 888 (November 20, 2000). In Hurvitz, a doctor was accused of
gross improprieties. Former employees filed declarations describing the doctor's improper
conduct and the patients who were victims of his improper conduct. The disclosure of such
information was embarrassing for the patients. However, in considering an order to seal the
declarations, the court ruled that the patients' privacy interests did not outweigh the First
Amendment interests in allowing public access to the court documents. Such a ruling is
consistent with the long-standing principle that court records should be readily available for
public inspection.
3. The concept of "practical obscurity" has been misconstrued.
The Judiciary appears to rely on the decision in United States Department of Justice v. Reporters
Committee, 489 U.S. 749 (1989), to support the proposition that the public may be denied access
to court records and criminal records. Such reliance, however, is unfounded.
Reporters Committee addressed the issue of FBI rap sheets, nationwide compilations of records
that were public at their source. The case referred to the "practical obscurity" of these otherwise
public records - a term coined by the government - without suggesting that state or local
courthouses should no longer make such records available to the public. Furthermore, the
Reporters Committee decision was specifically addressed and refuted by Congress in enacting the
1996 Amendments to the federal Freedom of Information Act, clarifying that government records
should be available to the public regardless of the requester's purpose.
In Reporters Committee, the Supreme Court expanded the scope of the FOI Act's Exemption
7(c), limiting access to federal law-enforcement records. Exemption 7(c) allows the government
to withhold law-enforcement records if the release "could reasonably be expected to constitute an
unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(c). The Supreme Court decided
that the public interest must focus on whether the release of information would "'open agency
action to the light of public scrutiny,' rather than on the particular purpose for which the
document is being requested." Reporters Committee, 489 U.S. at 772 (quoting Department of Air
Force v. Rose, 425 U.S. at 372). Instead of the broad presumption in favor of disclosure, as
Congress had intended, the Supreme Court reversed the presumption to one in favor of secrecy.
Reporters Committee, 489 U.S., at 774. Writing for the majority, Justice John Paul Stevens
articulated what has become known as the "central purpose" test: "[T]he FOIA's central purpose
is to ensure that the Government's activities be opened to the sharp eye of public scrutiny, not
that information about private citizens that happens to be in the warehouse of the Government be
so disclosed." Id. at 774.
Critics of the Reporters Committee decision have noted that requiring FOI Act requests to meet
this "central purpose" test is in opposition to the law's stated goal of "broad disclosure." And as
Justice Ruth Bader Ginsburg noted in a later case, "[t]he Reporters Committee 'core purpose'
limitation is not found in FOIA's language." United States Department of Defense v. Federal
Labor Relations Authority, 510 U.S. 487, 507 (1994) (Ginsburg, J., concurring).
Congress therefore sought to remedy the Reporters Committee decision by reaffirming its
original vision for the FOI Act through enactment of the Freedom of Information Amendments of
1996 (1996 Electronic FOIA Amendments). In addition to updating the FOI Act to reflect an era
in which more and more government documents are generated and stored electronically, the 1996
Amendments clarify Congress' intent that a FOI Act request may be made for "any" purpose. The
Findings section of the 1996 Amendments states that the purpose of the FOI Act is to "establish
... the right of any person to obtain access to [agency records] ... for any public or private
purpose." Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, §
The Reporters Committee case should not be relied upon in creating a broad policy regarding
privacy and access to court records. First, the case discusses access only in the context of FOIA, a
statute regulating executive branch records. Statutory construction is different from an
interpretation of the common law and First Amendment rights of access. Thus, the Court's
interpretation of a statute should not apply to other areas of law. Second, the case concerned
documents held by the executive branch, which had not always been presumptively public, not
court records, which have traditionally been presumptively open. Thus, the Court's reasoning is
simply not germane to an analysis of the policies regarding electronic access to court records.
4. Courts have already accounted for the role of privacy through privacy torts.
The Proposals, as worded, do not specify any compelling need, nor is there evidence of any
compelling need to limit public access to court documents.
The staff paper produced by the Office of Judges Programs discusses privacy interests in the
context of limitations on the constitutional and common law presumption of access. We believe
that in formulating its policy on electronic access the Judiciary should consider another context
in which courts have considered the conflict between First Amendment freedoms and privacy
concerns: the tort of invasion of privacy. The boundaries the courts have imposed on this tort
are particularly instructive in illustrating the rather limited reach that privacy arguments have had
when tested on a case-by-case basis against the value of openness in judicial proceedings.
The scope of the privacy tort is, of course, not before the Judiciary at this time, but the
jurisprudence is relevant to this discussion because of its expression of important judicial values
regarding openness and speech freedoms.
Included with the broader tort of invasion of privacy are actions for "publication of private facts."
In order to make out a claim under this prong of the privacy tort, a plaintiff must show the 1)
non-consensual 2) publication of 3) private facts of 4) no legitimate public concern or
newsworthiness and 5) in a manner that is highly offensive to the reasonable person of ordinary
sensibilities. In practice, courts are skeptical of these cases. They are especially difficult for
plaintiffs to win against the press when all that the news media has done is report truthful
information contained in court records.
The U.S. Supreme Court provided significant guidance in this area in Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469 (1975), where the Court held that the First Amendment prohibited the
awarding of civil damages against a television station for airing the name of a rape victim it
found in courthouse records open to the public. In reviewing the contours of whatever privacy
rights the victim or her family may have had in her identity, the Court noted that "the prevailing
law of privacy generally recognizes that the interests in privacy fade when the information
involved already appears on the public record." Id. at 495. As the Court further concluded, "By
placing the information in the public domain on official court records, the State must be
presumed to have concluded that the public interest was thereby being served." Id.
As a result of the ruling in Cox Broadcasting, the press can publish news reports based on
information contained in court records with considerable comfort that it will be protected from
liability in privacy actions. See Wolf v. Regardie's, 553 A.2d 1213 (D.C. 1989) (affirming
summary judgment for defendant in invasion of privacy claim where magazine reporter culled
information about plaintiff's real estate and banking investments from court files and other
public documents and this information was of legitimate public interest); Dresbach v. Doubleday
& Co., 518 F. Supp. 1285 (D.D.C. 1981) (granting summary judgment for defendant publisher
and author in privacy action arising out of book narrating the murder of plaintiff's parents where
author drew material from trial transcripts among other sources). The Court in Dresbach is
typical in that while it recognized that privacy interests are sometimes implicated by public trials,
it found the countervailing free access and free speech principles more compelling. "Clearly, this
society has put a higher value on open criminal proceedings and on public discussion of all issues
than on the individual's right to privacy," the Court concluded. Id.
While the issue of sealing court files or limiting public access to them is discrete from ex post
facto litigation over alleged defamation or invasion of privacy stemming from coverage of
judicial records, the body of case law developed around Cox Broadcasting illustrates the
overarching value the federal courts have attached to opening their own doors to the public and
the press. No serious evaluation of electronic access to court records can fail to see that the
federal judiciary would be reversing course were it to take any action other than maintaining the
prevailing presumption of openness that now guides all civil and criminal litigation, as well as
bankruptcy proceedings. We see no justification, in the name of privacy, for any blanket
reduction in the amount of judicial material available to the public, when the courts themselves
have consistently found transparency a higher value in an open society such as ours.
Finally, the U.S. Supreme Court has repeatedly indicated its preference for deciding conflicts
between privacy and coverage of the judicial system on a case-by-case basis. See Cox, 420 U.S.
at 491 ("[I]t is appropriate to focus on the narrower interface between press and privacy that this
case presents . . . "); Florida Star v. B.J.F., 491 U.S. 524, 533 (1989) ("We continue to believe
that the sensitivity and significance of the interests presented in clashes between First
Amendment and privacy rights counsel relying on limited principles that sweep no more broadly
than the appropriate context of the instant case."). A wholesale rule withdrawing large portions
of court records from public access is totally unwarranted for the additional reason that it would
run counter to the Supreme Court's pronouncements that these matters should be considered on
an individual basis as they arise.
C. There is evidence that the public accepts open access.
1. Examples of open access set by other jurisdictions.
Other courts have examined this issue throughly and have concluded, rightfully, that public
access to court records must be preserved to ensure our tradition of open government and
accountability. Florida, Ohio and Wisconsin, for example.
Those states allow anyone to access records via the Internet or other electronic means. There has
been no backlash, no outcry, and no known abuse.
The Reporters Committee urges the Judiciary to look to these example as a model for handling
the issue of electronic access to public records.
2. The public has strongly objected to limitations on electronic access in other
jurisdictions.
The Maryland Judiciary recently issued proposals to limit public access to electronic court
records in the name of privacy concerns. The state's proposals prompted a public outcry. Citizens
with diverse interests came together to protest the proposals, leading the Maryland Judiciary to
abandon the original plan and reconsider its options.
The Associated Press, in reporting on the opposition to the proposed rules, cited the example of
Kathy Morris, a private detective in Harford County, who used electronic access of court records
to perform background checks of a client's potential babysitters and learned that one of them was
a convicted child molester. The Maryland judiciary also received opposition from bankers,
apartment managers, nuclear power plant officials, and other employers who regularly access
court records electronically.
The public understands that information is contained in court records for a reason and the public
understands that such information is useful. Although there is a potential for abuse, court records
have not been abused in jurisdictions where they are readily available on-line. In the event of any
abuse, existing tort causes of action and criminal laws could be used to curb improper conduct.
Based on the reaction in Maryland, it appears that the public believes that the benefits of
electronic access outweigh fears, which have proven, thus far, to be unfounded.
D. Open access is vital due to the nature of the federal judiciary as an institution.
Maintaining the presumption of openness regarding judicial records is particularly important
given the institutional nature of the judiciary itself. Among the nation 's three coordinate
branches of government, the judiciary is the least transparent. Most judicial decision-making,
whether consisting of discussions between members of an appellate court panel or deliberations
among jurors, occurs outside of public view. Even when judicial officers operate in an
administrative capacity on Judicial Conference committees, their activities are usually not
memorialized on the public record. For example, when this very issue about which the
subcommittee has solicited comment – electronic access to court records – finally comes before
the Conference for debate and decision, no members of the public or press will be able to attend.
Nor will a transcript be available of the Conference's session, if it maintains its traditions in these
matters. The judiciary, needless to say, is also insulated from the reach of the Freedom of
Information Act, 5 U.S.C. § 552.
The signing journalism organizations by no means dismiss the legitimate interests advanced by
judicial secrecy. But we believe that the Judiciary must take into account this backdrop of
impenetrability when it considers how to implement and manage electronic access to public court
records. By preserving the presumption of openness to judicial records - - and, we hope,
enhancing access in the coming years through electronic networks such as CM/ECF - - the
courts will maintain this vital link with the public and bolster public confidence in the
administration of justice. As Chief Justice Burger noted in Richmond Newspapers, 448 U.S. at
572, "[p]eople in an open society do not demand infallibility from their institutions, but it is
difficult for them to accept what they are prohibited from observing."
Recent events in our nation's history - - specifically, a highly contested presidential election
resulting in repeated vote recounts, as well as court rulings that were subject to intense political
scrutiny - - demonstrate that openness is necessary for both the peace of mind of the public at
large and the sanctity of our judicial system. If those proceedings had been closed to and hidden
from the public, the calls for electoral reform that resulted from the controversy would surely
have escalated to cries for revolution. Reducing access to court records would create greater
mistrust at a time when our nation needs greater understanding.
In stressing the importance of maintaining the presumption of openness, we are cognizant that
the tradition of access to judicial records and proceedings, under both the common law and the
First Amendment, could not have been possible without the collective diligence of the federal
courts themselves. Over the last several decades, federal judges have developed an invaluable
body of case law in this area. When faced throughout the years with competing interests, such as
personal privacy, the courts have consistently come down on the side of protecting the rights of
the people and the press to monitor the operation of the legal system through attendance at
judicial proceedings and access to court records. Through the fair report privilege and the careful
confinement of the privacy tort, the courts have also freed the press to publish fair and accurate
accounts of judicial documents and publicize truthful events and episodes, even personally
explicit ones, recounted in case pleadings and proceedings.
Just as the federal courts have spoken in the past to preserve openness over judicial records and
proceedings, so should they now take a further step and reinforce the importance of access in the
electronic age by implementing Internet dissemination of court files. The same values and legal
principles that sustained the courts' prior access jurisprudence – permitting first-hand
observation of the legal system at work, cultivating trust in the administration of justice,
acknowledging the press's role in conveying information to the public – are all relevant, even
more so, when the question of access is transplanted into the digital world. The federal courts
have a tremendous opportunity to enhance their relationship with the public by providing Internet
access to case files. Anything short of permitting full access will amount to a retreat from the
courts' prior presumptions. An institution that is otherwise lacking in transparency to the public
can ill afford such a step backward. On the other hand, a pledge from judicial leaders to press
ahead with expanded access to court files over the Internet will send a confident message about
the harnessing of technology to improve democratic accountability. The public interest will be
well served by such a commitment.
3. Records that are available to the public should remain available to the public, as new
technologies develop and permit quicker and more efficient means of accessibility.
The signing journalism organizations are particularly concerned about the policy option of
restricting remote access to electronic case files while maintaining full access at the courthouse
to both paper and electronic records. See Civil Option 3, Criminal Option 1. This proposal for a
"two-tiered" access plan represents a profound distortion of the very notion of "public record"
and would set a misguided and harmful precedent.
This is not the first time that the Judicial Conference has voiced concerns over online distribution
of judicial files. Late in 1999, citing security fears, a committee of the Conference declined to
release judges' financial disclosure forms to an Internet-based news organization, APBnews.com
[hereinafter "APBnews"], that desired to post the documents on its website. Pursuant to the
Ethics in Government Act of 1978, these disclosure forms are public records and were available
at the time in paper copy to any person who submitted a form to the Administrative Office of the
United States Courts.
APBnews sued for access to the disclosure forms, arguing among other things that it was being
treated differently from news organizations that publish in traditional print or broadcast formats.
The committee's decision to withhold the disclosure forms drew considerable press attention,
and, months later, the full Conference voted to rescind the committee's decision and provide the
documents to APBnews. This episode was newsworthy because the federal courts appeared to be
one of the first governmental bodies to take the position that a document could be "public" in one
setting (in the Thurgood Marshall building, for example) but not in another (when a computer
user wants to download it from the Internet).
The committee's proposal to restrict APBnews' access was revised in favor of a better policy.
Our understanding of the Judicial Conference's new policy is that any judge may seek redaction
of a financial disclosure form, and that these requests are handled on a case by case basis, which
comports with discussion elsewhere in our comments that privacy and security concerns are best
handled on an individual basis as the need arises.
To be sure, we do not perceive how creating a "two-tiered" document policy can alleviate the
privacy concerns allegedly at stake here. Once an official file is in the public domain, regardless
of how it arrives there, how many copies are made of it, or how it is accessed, it is pure folly for
government to pretend that the file still has the gloss of privacy to it. Surely counting on the lack
of interest or initiative on the part of the public, or the difficulty in digesting massive numbers of
paper versions of documents, is no way to develop a privacy policy. Shunning Internet
distribution while permitting xeroxing of the very same paper records in person "is relatively
unlikely to advance the interests [i.e. privacy] in the service of which of the State seeks to act."
Florida Star v. B.J.F., 491 U.S. 524, 535 (1989). The "public is public" position articulated in
the request for comment is therefore the only coherent policy for the Conference to adopt.
Were the federal courts to entertain some scheme in which the "public" file at the courthouse
would differ from the "public" file available on the Internet, it would potentially leave the fair
report privilege and the publication-of-private-facts tort in disarray. Would the privilege apply to
documents in the courthouse file or only in the Internet file? Would an invasion of privacy claim
now be more likely to succeed if a news account drew upon documents in the courthouse file that
litigants successfully held back from the online file? Creating two tiers of public judicial records
is an invitation to disturb well-settled doctrines that advance the causes of governmental
accountability and journalistic truth-telling.
As new technologies develop that allow quicker and more efficient access to information, the
laws permitting broad access should not change. Electronic access to court records will permit a
citizen to obtain information more quickly. Electronic access may also help a citizen perform a
more thorough, comprehensive search of records. We understand the anxieties that technological
innovations create; the seminal Brandeis after all, grew out of the spread of photography in the
late nineteenth century. But rather than run scared from the capacity of the Internet, judicial
leaders should embrace the possibilities the new technologies create for linking the people with
their courts.
F. Analysis of Proposed Policies
The Judiciary has proposed various policy options for civil, criminal, bankruptcy, and appellate
case files. We have noted that the Judiciary has not proposed policies that allow the same access
via the Internet or other electronic technologies that citizens have when they walk into the
courthouse for all types of case files. We are concerned that the Judiciary has framed the issue in
such a manner as to limit access from the outset. The options, as stated by the judiciary, are as
follows:
Civil Case Files
1. Maintain the presumption that all filed documents that are not sealed are available both
at the courthouse and electronically.
This approach would rely upon counsel and pro se litigants to protect their interests on a case-by-
case basis through motions to seal specific documents or motions to exclude specific documents
from electronic availability. It would also rely on judges' discretion to protect privacy and
security interests on a case-by-case basis through orders to seal or to exclude certain information
from remote electronic public access.
2. Define what documents should be included in the "public file" and, thereby, available to
the public either at the courthouse or electronically.
This option would treat paper and electronic access equally and assumes that specific sensitive
information would be excluded from public review or presumptively sealed. It assumes that the
entire public file would be available electronically without restriction and would promote
uniformity among district courts as to case file content. The challenge of this alternative is to
define what information should be included in the public file and what information does not need
to be in the file because it is not necessary to an understanding of the determination of the case or
because it implicates privacy and security interests.
3. Establish "levels of access" to certain electronic case file information.
This contemplates use of software with features to restrict electronic access to certain documents
either by the identity of the individual seeking access or the nature of the document to which
access is sought, or both. Judges, court staff, parties and counsel would have unlimited remote
access to all electronic case files. This approach assumes that the complete electronic case file
would be available for public review at the courthouse, just as the entire paper file is available for
inspection in person. It is important to recognize that this approach would not limit how case
files may be copied or disseminated once obtained at the courthouse.
4. Seek an amendment to one or more of the Federal Rules of Civil Procedure to account
for privacy and security interests.
Comment: The first option is the preferred option. As described above in detail, there is a strong
presumption of access. Any limitations should be decided on a case-by-case basis, with the
assumption that the public shall have access to the broadest range of material.
The second option is unacceptable, as broad, sweeping determinations as to what should be
public would, by necessity, be imprecise and would inevitably limit access to material that should
be public.
The third proposal would limit access based upon the content or proposed use of the information
sought. Such arbitrary and vague conditions allow court personnel to act as editors, allowing
access to those they like and denying access to those whose opinions or purpose may be disliked.
A reporter, for example, could be restricted from access to court records if a records custodian
were to determine that he did not approve of the content of the reporter's publications. Such
content-based restrictions fly in the face of basic principles of the free flow of information in a
democracy. Courts have long acknowledged that they should not act as editors, nor should they
restrict information or opinions with which they disagree. Ann-Margret v. High Society
Magazine, Inc., 498 F. Supp. 401, 405 (S.D.N.Y. 1980) ("it is not for the courts to decide what
matters are of interest to the public").
The requirements of sections that require persons requesting records to state their name and
affiliation imply that a citizen's identity or affiliation would make a difference in determining
whether and to what extent such citizen would be able to access court records. Presumably, court
personnel would be permitted to decide who should be entitled to access to court records based
upon their identity or affiliation, which would effectively be a form of censorship and which is
contrary to the presumption that the public - - anyone in the public - - should have access to court
records.
We cannot comment upon the fourth proposal, as it is not clear how such an amendment would
read, but it is unlikely that any broad rule would properly accommodate the public's presumed
right of access.
Criminal Case Files
1. Do not provide electronic public access to criminal case files.
This approach advocates the position that the EFC component of the new CM/ECF system
should not be expanded to include criminal case files. Due to the very different nature of
criminal case files, there may be much less of a legitimate need to provide electronic access to
these files. The files are usually not that extensive and do not present the type of storage
problems presented by civil files. Prosecution and defense attorneys are usually located near the
courthouse. Those with a true need for the information can still access it at the courthouse.
Further, any legitimate need for electronic access to criminal case information is outweighed by
safety and security concerns. The electronic availability of criminal information would allow co-
defendants to have easy access to information regarding cooperation and other activities of
defendants. This information could then be used to intimidate and harass the defendant and the
defendant's family. Additionally, the availability of certain preliminary criminal information,
such as warrants and indictments, could severely hamper law enforcement and prosecution
efforts.
2. Provide limited electronic public access to criminal case files.
This alternative would allow the general public access to some, but not all, documents routinely
contained in criminal files. Access to documents such as plea agreements, unexecuted warrants,
certain pre-indictment information and pre-sentence reports would be restricted to parties,
counsel, essential court employees, and the judge.
Comment: We are concerned about both options listed. The public should have the same access
to on-line records as it has to records at the courthouse.
We strongly object to the first option. As described above, criminal records are the types of
records of most concern to the public. Employers check criminal records to ensure they are not
hiring persons who pose a legitimate safety threat to others. Parents use criminal records to
screen child care assistants. When Maryland recently tried to restrict electronic access to
criminal records, the public was outraged and responded with severe criticism of the proposal.
Electronic access to criminal records would, as described above, provide great benefits to the
public. We request that the Judiciary reconsider its options. On-line access to criminal records
should be identical to access at the courthouse.
Furthermore, the Judiciary should not be concerned about documents such as pre-sentence
reports because, pursuant to F.R.Crim.P. 32, they are not considered public records. We would
not expect them to be available at the courthouse, and thus we would not expect them to be
available via the Internet. Nevertheless, any document which would be available at the
courthouse should be available electronically.
Bankruptcy Case Files
1. Seek an amendment to section 107 of the Bankruptcy Code.
Section 107 currently requires public access to all material filed with bankruptcy courts and gives
judges limited sealing authority. Recognized issues in this area would be addressed by amending
this provision as follows: 1) specifying that only "parties in interest" may obtain access to certain
types of information; and (2) enhancing the107(b) sealing provisions to clarify that judges may
provide protection from disclosures based upon privacy and security concerns.
2. Require less information on petitions or schedules and statements filed in bankruptcy
cases.
3. Restrict use of Social Security, credit card, and other account numbers to only the last
four digits to protect privacy and security interests.
4. Segregate certain sensitive information from the public file by collecting it on separate
forms that will be protected from unlimited public access and made available only to the
courts, the U.S. Trustee, and to parties in interest.
Comment: also recognize the concern with the availability of social security numbers and bank
account numbers. We believe that the second or third options would be preferable. The first
option could result in unfair discrimination among requesters. The fourth option would create a
whole system of secret files that is contrary to the principles of public access to court records.
Nevertheless, social security numbers, bank accounts, and other information is available in files
that are at the courthouse, yet there has been no call for secrecy in the records. We feel strongly
that on-line access to bankruptcy records should be identical to access at the courthouse. Any
potential abuse should be punished severely through fraud and misappropriation laws that already
exist.
Appellate Cases
1. Apply the same access rules to appellate courts that apply at the trial court level.
2. Treat any document that is sealed or subject to public access restrictions at the trial
court level with the same protections at the appellate level unless and until a party
challenges the restriction in the appellate court.
Comment: On-line access to appellate records should be identical to access at the courthouse.
Summary of Comments: On-line access to all court records should be identical to access at the
courthouse.
Critics of open access fear that there is a possibility of abuse by those who have no legitimate
interest in the information contained in court files. A solution is to allow those who have been
harmed by abuse to sue civilly under existing privacy torts, or to prosecute offenders under the
existing statutes that criminalize stalking, misuse of credit information, and similar laws. The public
must be assured that with freedom comes responsibility. We have the freedom to access public
records, but we are responsible for abuse. We urge the Judiciary to adopt policies that allow the
same access via the Internet or other electronic technologies that citizens have when they walk
into the courthouse.
Thirty years ago, the New Mexico Supreme Court foresaw the potential expansion of technology
and wisely ruled that the "right to inspect public records should . . . carry with it the benefits
arising from improved methods and techniques of recording and utilizing information contained
in these records, so long as proper safeguards are exercised as to their use, inspection and safety."
Ortiz v. Jaramillo. We urge the Judiciary to similarly embrace new technologies as a benefit to
the public and allow public access to court records.
Limiting Internet access to court records seems to imply that public access to court records is
acceptable as long as the access is not meaningful. In other words, access should be permitted
only if it is arduous and difficult and requires the expenditure of substantial time and money.
Such a message hardly reassures the public that its government functions well and has nothing to
hide.
The better policy is to let technology aid the public and the courts by making information more
freely available to boost public confidence in the judicial system and to allow meaningful access
to the information contained in court records.
Conclusion
We greatly appreciate the Judiciary's consideration of these Comments and respectfully request
that the Judiciary adopt the policies that will allow the broadest and most meaningful public
access to court records.
Resentfully submitted,
Lucy Dallis, Esq., Executive Director
Gregg Leslie, Esq., Legal Defense Director
Ashley Gather, Esq., Legal Fellow
The Reporters Committee for Freedom of the Press
1815 N. Fort Myer Drive, Suite 900
Arlington, VA 22209
(703) 807-2100
Counsel for The Reporters Committee for Freedom of the Press
Bruce W. Sanford, Esq.
Robert D. Lasted, Esq.
Bruce D. Brown, Esq.
Baker & Hosteller LLP
1050 Connecticut Avenue NW, Suite 1100
Washington, DC 20036
(202) 861-1500
Counsel for Society of Professional Journalists
Bill McCloskey, Chapter President
Robert S. Becker, Esq., Freedom of Information Chair
D.C. Professional Chapter
Society of Professional Journalists
P.O. Box 19555
Washington, D.C. 20036-0555
(202) 364-8013
For the D.C. Professional Chapter of the Society of Professional Journalists
Kathleen A. Kirby
Wiley, Rein & Fielding
1776 K Street, NW
Washington, DC 20006
(202) 719-3360
Counsel for Radio-Television News Directors Association
No. 212
Steven M. Emmert
Director, Government and Industry Affairs
Lexis-Nexis
Washington, DC
Reed Elsevier Inc., on behalf of LEXIS-NEXIS, is pleased to submit these Comments in
response to the Judicial Conference of the United States, Committee on Court Administration
and Case Management, Subcommittee on Privacy and Electronic Access to Court Files ("U.S.
Judicial Conference") request for "Comment on Privacy and Public Access to Electronic Case
Files" ("Request for Comment"). As discussed below, the overwhelming majority of the
information that LEXIS-NEXIS redisseminates in its services is public in nature.
In its consideration of the national policy alternatives proposed in response to the Request for
Comment, the U.S. Judicial Conference should preserve the federal judiciary's current policy of
open access to all case file documents, unless sealed or otherwise restricted due to a statute or
federal rule. The U.S. Judicial Conference should maintain this policy regardless of whether
judicial records are kept electronically or in paper form. Changing the status quo by curtailing
access would: (1)run afoul of the long-established common-law and constitutional right of public
access to judicially-held case files; (2)result in greater administrative burdens that would
effectively limit the public's access to court case files during a time in which technology should
allow for greater efficiency; and (3) result in greater administrative burdens on the courts that
would significantly tax the resources currently available to the courts and the offices of the
clerks. We respectfully suggest that the Federal Judiciary, and the American public, will be best
served by adhering to well-settled principles of law protecting the publics' right to access judicial
records.
I. LEXIS-NEXIS.
LEXIS-NEXIS, a division of Reed Elsevier Inc., is headquartered in Dayton, Ohio and employs
more than 7,700 individuals worldwide. LEXIS-NEXIS leads the information industry with the
largest one-stop, dial-up information service, the LEXIS-NEXIS service for legal, business, and
government professionals. The LEXIS-NEXIS service contains more than 3.2 billion searchable
documents in more than 11,800 databases. It adds 18.2 million documents each week.
The LEXIS-NEXIS service is the leading source of online legal research materials and
information products for legal professionals in small and large law firms, solo practitioners, law
schools, and the judiciary. The LEXIS-NEXIS services is also the largest news and business
online information service, with not only news, but company, country, financial, and
demographic information, as well as market research and industry reports. The LEXIS-NEXIS
service is unmatched in its depth and breadth of information. In fact, 120,000 new articles are
added each day from worldwide newspapers, magazines, news wires, and trade journals. The
LEXIS-NEXIS service has the largest collection of public records in the United States.
The overwhelming majority of the information sources on the LEXIS-NEXIS service are public
in nature, all of which are available to the general public through their public libraries, the local
newsstand, or bookstore, or from government offices.
Today, more than two million professionals worldwide—lawyers, accountants, financial analysts,
journalists, law enforcement officials, and information specialists—subscribe to LEXIS-NEXIS
services. They perform more than 1,000,000 searches per day. The combined services contain
more than 31,000 sources.
II. The Federal Judiciary Should Preserve the Public's Historic Rights of Open Access to
Court-Held Records.
The federal judiciary's current policy of open access to all case file documents, unless sealed or
otherwise restricted due to a statute or federal rule, should remain the same regardless of whether
the data is stored and made available in paper or electronic form. The current policy of open
access to court records has served this country well for over a century.
The openness of public records is a well-cherished and uniquely American tradition. As the U.S.
Supreme Court held in Nixon v. Warner Communications, 435 U.S. 589, 597 (1978), there has
long been a common law right to "inspect and copy public records and documents, including
judicial records and documents" which is not "condition[ed] . . . on a proprietary interest in the
document or upon a need for it as evidence in a lawsuit." These records reflect court
proceedings, many of which the First Amendment ensures a right of access. In its landmark
decision, Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), for example, the U.S.
Supreme Court stated that there is a historic right of access to certain core criminal justice
information. See id. The historic right of access to main bankruptcy proceedings is codified in
the Bankruptcy Code— 11 U.S.C. §107(a) ("a paper filed in a case under this title and the
dockets of a bankruptcy court are public records and open to examination by an entity at
reasonable times without charge"). This section evidences Congress' strong desire to preserve
the public's right of access to judicial case files in bankruptcy proceedings.
Over the years, the right of access has been expanded and strengthened. For example, federal
courts have extended the scope of Richmond Newspapers to records in civil, as well as criminal,
proceedings. See, e.g., In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1308-09
(7th Cir. 1984). The First Amendment right to have access to judicial records of criminal
proceedings also has been recognized by the courts. See, e.g., In re Time, Inc., 182 F.3d 270 (4th
Cir. 1999); United States v. Peters, 754 F.2d 753, 763 (7th Cir. 1985).
The courts' discretionary power to determine public access rights to records and files in their
possession coexists with their "supervisory power over [their] own records and files," and courts
may deny access "where court files [can] become a vehicle for improper purposes." Nixon, 435
U.S. at 596. In criminal cases, as a matter of practice, public access has often been denied to
certain types of court records, including discovery materials, grand jury proceedings, plea
negotiations, and jury deliberations. As for bankruptcy records, section 107(b) of the Bankruptcy
Code provides a statutory exception to the broad open access principle in section 107(a). In
section 107(b), courts are authorized to deny access to papers and records filed in a case under
Title 11 in order to protect trade secrets, confidential research, development, commercial
information, or a person with respect to defamatory statements contained in court files. 11
U.S.C. §107(b).
Beyond the court's discretionary power to deny public access to certain court records is the
parties' rights to use current legal mechanisms to protect certain documents from public
inspection and dissemination. In fact, all indications are that these legal tools—motions to seal
and protective orders—provide adequate individual protection, even in the new electronic
environment.
The key difference between the past and the present is the new electronic means of storing,
accessing, and disseminating court records. The means by which court record information can be
stored and obtained, however, has evolved during the past century, and has never before affected
the basis of the legal presumption that judicial records are open for public inspection. The
presumption has been based upon the type of information the records contain, not the means of
their storage or distribution. Thus, given the sufficiency of the existing mechanisms, an
unchanged judicial policy would continue to adequately protect privacy interests, regardless of
whether the information is maintained in paper or electronic form, as long as litigants and the
courts avail themselves of the existing legal mechanisms.
Transitioning away from paper files and creating electronic case files actually furthers the federal
judiciary's policy by allowing greater public access to court records. Prior to the development of
the Internet, there were numerous practical barriers that citizens confronted when obtaining
access to court files. Just as the advent of photocopying removed certain practical obstacles to
accessing court records, the Internet would allow for improved public access to court case files,
furthering this historically broad right.
Moreover, the increased availability of court case files in electronic form reduces the cost of
providing access to litigants, the press, and the public. This reduced cost will result in ready,
inexpensive access to a broader range of materials.
It would be ironic if the federal judiciary, at a time when it is seeking ways to relieve court staff
of the administrative burdens associated with responding to growing numbers of requests for
information by utilizing modern technology, adopted a national policy approach that would either
re-route the public to the courthouse staff to obtain court files that are available electronically or
would limit public access based on a "need to know" standard. Either approach, if adopted,
would place more stress on judicial resources and staff, who would be tasked with determining
the appropriate contents of court case files, and determining whether a requester might use them
for "improper purposes." It would be akin to unnecessarily adding the administrative burdens of
applying the Freedom of Information Act to the courts without any of the public benefits.
Instead of adopting national court policy procedures that restrict access based on user or other
selective characteristics, the federal judiciary should implement policies that will help ensure a
diversity of private and non-profit channels of information dissemination. This would be
consistent with the policy adopted by Congress for the federal government in the information
dissemination provisions of the Paperwork Reduction Act of 1994 which, among other things,
encourages a diversity of information providers in both the public and private sectors. See 44
U.S.C. §3506(d).
The Request for Comments discusses bankruptcy court records separately from other types of
court records. If open access to all of the information in bankruptcy court records is not practical
in light of concerns with individual privacy and modern technology, then the U.S. Judicial
Conference should consider collecting only information that is appropriate for public
consumption. Alternatively, if sensitive information collected from debtors is ever to be
restricted to only interested parties, the U.S. Judicial Conference should recognize that the
category of interested parties is far broader than previously has been acknowledged. In fact, the
identification of interested parties is one of the reasons underlying the policy that bankruptcy
records be open to public inspection and that notices of bankruptcy filings be published in
general circulation newspapers. Thus, accredited representatives, like credit reporting agencies,
would need to be granted access to debtors' identifying information, along with the public fact of
the bankruptcy. Cf. 19 C.F.R. 103.13(a) (permitting "accredited representatives of the press" to
examine the cargo manifests of incoming and outgoing vessels, copy non-confidential
information from these manifests, and disseminate it). Debt reporting agencies would need to be
granted access to important facts related to the bankruptcy proceeding, such as the account
numbers at issue. The appropriate dissemination of this information is vital to the smooth
functioning of our economy.
Our courts and policymakers long ago concluded that denying the public the right of access to
information collected and maintained at taxpayer expense is contrary to the spirit of our
democratic institutions. The public's right of access to judicial records would be undermined
unless the federal judiciary maintains its current open access policies—with only very narrow
restrictions employed to protected personal privacy in criminal cases—and modernizes its
policies to reflect the equal treatment of electronic and paper files. The public's right of access
to judicial records should be no less than the public's right of access to records collected and
maintained by the executive and legislative branches of government.
III. Individual Privacy Protection is Not a Basis for Curtailing the Public's Historic Right of
Access to Judicial Records.
Both the Request for Comments and the White Paper raise the protection of a record subject's
personal privacy as a basis for possibly restricting the means of obtaining court information. For
example, they cite privacy concerns in suggesting that the federal judiciary could establish
differing levels of access to certain electronic case file information for courts, litigants and their
attorneys, U.S. Government officials, and the public in civil, criminal, and appellate cases.
Personal privacy, always given great weight in our democracy, nevertheless should not outweigh
the public's historic interest in accessing court documents.
Where the government concludes that the public interest is served by making information in
official records available for public inspection, then both legal and policy reasons militate against
barring a class of persons from accessing or using the very same information. The U.S. Supreme
Court, for example, has repeatedly struck down, on First Amendment grounds, statutes imposing
criminal or civil liability for the dissemination of personal data in official records available for
public inspection. As the Court has stated, if there are privacy interests to be protected, the
government "must respond by means that avoid public documentation or other exposure of
private information." See Florida Star v. B.F.J., 491 U.S. 524 (1989); Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469 (1975). Once official records are made available for public inspection,
however, any privacy rights that may exist in their content diminish dramatically.
In fact, historically, when parties have entered into a court proceeding, whether for civil,
criminal, bankruptcy, or appellate cases, they have always expected that personal details would
be brought before the court, unless protected under seal or through a protective order.
Diminished personal privacy, thus, has existed for as long as judicial proceedings have existed.
Further, at least four current Supreme Court justices have expressed their reservations with a
discriminatory ban on access to government information designed to prevent persons from
publicly disseminating the information. See L.A. Police Department v. United Reporting Corp.,
120 S. Ct. 483, 485 (1999) (Scalia J., concurring); id. at 486 (Stevens, J. dissenting).
Any decision to limit the public's right to access and inspect court records will ultimately lead to
a loss of public confidence in the judiciary. Decisions made in secret by persons meeting behind
closed doors, particularly when affecting the interest of the public, as all judicial decisions must
due to the very nature of the judiciary, will only generate public mistrust and contempt for the
decision. Justice Brandies, a proponent of open records laws, noted that "Sunlight is said to be
the best of disinfectants; electric light the most efficient policeman." Louis D. Brandeis, OTHER
PEOPLE'S MONEY AND HOW THE BANKERS USE IT p.92 (1914).
IV. Conclusion.
In conclusion, LEXIS-NEXIS has serious concerns with the national policy approaches that
would run afoul of the broad historic right of public access to court records. We believe that the
proposal is unnecessary and is counter to this country's long-standing tradition of open access to
public record information. We respectfully urge the Subcommittee on Privacy and Electronic
Access to Court Files, Judicial Conference of the United States, to retain its original court
records policy, limiting public access to court files in only extreme circumstances, and extending
equal access treatment to electronic case files.
We appreciate this opportunity to express our concerns with the proposed national policy
alternatives and look forward to working cooperatively with the U.S. Judicial Conference to
address our support for modernizing the federal judiciary's policies to allow public access to
electronic and paper files equally and to voice our concerns about any curtailment of the public's
right of access.
No. 213
1/26/01
Criminal Justice Legal Foundation
Sacramento, CA
CJLF is a public interest legal foundation dedicated to the rights of victims of
crime and of law-abiding society to an effective system of criminal justice.
We were surprised, to put it mildly, by this statement in the proposal: "Due to the very different
nature of criminal case files, there may be much less of a legitimate need to provide
electronic access to these files." This statement is 180 degrees backwards.
Civil litigation between individuals and closely held businesses is largely a private matter.
Typically, it is only litigation involving publically traded companies where persons who are not
parties or closely affiliated with parties have a real interest in the case. In criminal cases, by
contrast, the
real parties in interest are all of the citizens of the country. While the United States Attorney
nominally represents the government, he or she really represents us all. We are all real
parties in interest in the case and have a bona fide interest in seeing that cases are diligently
prosecuted.
The victim of the crime, or the next of kin of a deceased victim, has a special interest. Although
many prosecutors do treat the victims as quasi-clients and keep them informed, many
others are quite callous in their treatment of victims.
Electronic access would be a great benefit to these victims. There are, of course, legitimate
privacy concerns. See, e.g., 18 U.S.C. sec. 3509(d). Private information of victims and
witnesses must
be protected regardless of whether access is electronic or paper. These concerns warrant limiting
the information electronically accessible, but not a denial of access. The "no access" option in
the proposal should be categorically rejected.
The second alternative, while better, remains too restrictive. Most glaring is this statement:
"Access to documents such as plea agreements . . . would be restricted to parties, counsel,
essential
court employees, and the judge." The omission of the victim from this list is, we sincerely hope,
merely an oversight. The victim should be first on that list. Victims have a right to be consulted
about the disposition. See 18 U.S.C. sec. 1512 notes. Access to plea agreements will help
them learn when that right has been ignored.
The general public also has an interest in access to information on the disposition of the case.
Excessively lenient plea agreements are the principal abuse of prosecutorial discretion in
America today. While portions of the agreement may need to be kept confidential (e.g.,
agreements to testify
against other defendants), public access should be the general rule.
Finally, the plan should address how collateral review cases under 28 U.S.C. sections 2254 and
2255 fit into the framework. While 2254 is technically civil and 2255 is part of the criminal case,
they are actually the same kind of proceeding for the present purpose.
Thank you for the opportunity to comment on the proposal. As the Judicial Conference moves
forward, we hope to see a greater awareness of and sensitivity to the interests of crime victims
and the public in criminal cases.
No. 214
1/26/01
Jane E. Kirtley
Director, Silha Center for the Study of Media Ethics and the Law
Minneapolis, MN
The Silha Center for the Study of Media Ethics and Law submits the following comments on the
review of policy proposals by the Subcommittee on Privacy and Electronic Access to Case Files.
The Silha Center is a research center located within the School of Journalism and Mass
Communication at the University of Minnesota. Its primary mission is to conduct research on,
and promote understanding of, legal and ethical issues affecting the mass media. The Center also
sponsors an annual lecture series, hosts forums, produces a newsletter and other publications and
provides public information about media law and ethics issues.
After studying the proposals, we submit that the common law, First Amendment and public
policy principles at stake weigh heavily against any limitations on public access to electronic
court records that are already accessible in other forms. Although there may be some legitimate
privacy issues presented by expanding the accessibility of court documents, we believe they are
more illusory than real, and that when genuine privacy interests are truly threatened, the
processes in place for sealing those records are more than sufficient to prevent unwarranted
disclosure. In an open society in which the people are charged with monitoring the performance
of their government, and when sufficient safeguards already exist to protect bona fide privacy
interests, it would be a mistake to impose a new regime of court secrecy in which categorical and
preemptive determinations are made on these matters. These decisions are best made on a case-
by-case basis, upon a motion by the party seeking to either seal the records entirely or to curtail
their availability on electronic networks. 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. 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.
We suggest that the Subcommittee recommend the continued implementation of the CM/ECF
system, and that federal court records be made available through electronic networks, including
the Internet. Doing this will increase the efficiency of the judiciary while also democratizing the
records system, giving citizens, journalists and other interested parties access to information they
need to monitor the fairness and efficacy of the courts. Taking these steps will not eliminate the
risks of abuse that are inherent in any public records system, but neither will they substantially
increase those risks. It is worth emphasizing that those who propose greater accessibility to
public records do not seek to expand the types of records available to the public. Rather, they
simply aim to provide broader and more efficient access to records that are already public. If the
proposals seeking to restrict access are adopted, however, records will be withheld peremptorily
from electronic databases without any particularized investigation into the strength of the privacy
interests involved.
Common Law and Constitutional Issues
The Subcommittee's analysis should begin by recognizing that the proposals for restricting
access contradict historical and legal practices and precedents. The U.S. Supreme Court made
clear in Nixon v. Warner Communications, Inc. , 435 U.S. 539 (1978), that the public enjoys a
common law right of access to judicial records. The Court has also held that the public must be
given access to most criminal trial proceedings. Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555 (1980) (public has First Amendment right to witness criminal trials), Press Enterprise
Co. v. Superior Court, 464 U.S. 501 (1984) (Press Enterprise I) (establishing First Amendment
right of access to voir dire), Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-
Enterprise II) (establishing First Amendment right of access to transcripts of a preliminary
hearing). This presumption of openness can be reversed only by showing an "overriding interest
based on findings that closure is essential to preserve higher values." Press Enterprise I, at 638.
In addition, several federal circuits have held that there is a "strong presumption" under the
common law in favor of access to court records, United States v. Beckham, 789 F.2d 401 (6th
Cir. 1986), and that the burden of proof is on the party seeking closure. F.T.C. v. Standard
Financial Management Corp., 830 F.2d 404 (1st Cir. 1987). The presumption of access is
therefore firmly established in the laws and traditions of American courts. As the Court stated in
Richmond Newspapers, access is an "indispensable attribute of the Anglo-American trial." at
569. The presumption of access also extends to civil trials, including documents, "if such access
has historically been available, and serves an important function of monitoring [judicial]
misconduct." Washington Post v. Robinson, 935 F.2d 282, 287 (D.C. Cir. 1991).
It is the duty of citizens to ensure that their courts operate lawfully and equitably, but these
judgments cannot be made if the public is denied access to the evidence. The greater access
people have to court records, the better equipped they will be to carry out this oversight function.
The proposals seeking to restrict electronic access to court records thwart those efforts by turning
the "strong presumption" of access on its head, creating whole categories of records to which
electronic access is denied. (See Civil Case Proposal #2 and #3, and Criminal Case Proposal #2).
Civil Case Proposal #3 would go still further by establishing a system of preferential access in
which the electronic records system would be available to some people and not others. Several
federal courts have rejected this kind of differential access to records as a denial of equal
protection under the 14th Amendment. See McCoy v. Providence Journal Co., 190 F.2d 760 (1st
Cir. 1951) (holding unconstitutional a city's grant of access to one newspaper but not a
competing newspaper). See also, Quad-City Community News Service, Inc. v. Jebens, 334
F.Supp. 8 (S.D. Iowa, 1971) (holding unconstitutional the denial of access to an "underground"
newspaper while granting access to traditional newspapers).
The proposals seeking to restrict access via electronic networks are inconsistent with the
presumption of openness established by the Supreme Court and reiterated in the Circuit courts,
and they are inconsistent with the prevailing principle that access to government documents
should be granted without reference to the identity of the person seeking those records. These
principles are best respected through a system of broad public access via electronic networks to
all public court documents. We also believe that the mechanisms already in place for sealing
records are more than adequate to safeguard any legitimate privacy interests.
Public Policy Considerations
Setting aside the doctrinal and constitutional problems with restricting access to court records,
there are abundant public policy reasons for rejecting the more restrictive proposals. First, these
proposals are anti-democratic and do not take seriously the desire and need for access by private
citizens, non-traditional journalists and public interest organizations. There are many individuals
who, if given access electronically, could make productive use of court records. They might
investigate the background of convicted criminals living in their neighborhoods. They might
scrutinize the treatment of friends or relatives by the courts. They might even discover
information helpful in defending themselves against criminal prosecutions or civil suits. Without
electronic access, undertakings require extraordinary efforts from people, most of whom work
during the times when records are available for examination, and many of whom live many miles
away from the nearest federal courthouse.
Moreover, there are many organizations that, with sufficient access, could engage in more direct
public oversight of the courts and contribute significantly to discussions of public issues.
Alternative news organizations, news web sites, public interest organizations, lobbying
organizations, victims' rights groups, lawyers' associations and many others could make great
use of these records while holding courts accountable for their rulings and procedures. Again,
many of these records are already publicly available. But without electronic access – which
permits examinations of records from remote locations, cross-referencing of records and
comprehensive content searches – these kinds of investigations might never be undertaken.
It is at last possible, through the use of new technology, to completely democratize judicial
records systems, giving every citizen and every group the ability to compile their own evidence
and to make their own judgments about the fairness and proper functioning of the courts. It also
gives private citizens and non-experts access to the same material available to lawyers and
government officials. As the Court noted in Richmond Newspapers, "People in an open society
do not demand infallibility from their institutions, but it is difficult for them to accept what they
are prohibited from observing." Id. at 572. It would be particularly ironic 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 concerns.
Making judicial records available on electronic networks would increase the fairness of the court
records system, facilitate greater scrutiny of judicial conduct, and continue and enhance the
tradition of openness that is part of the culture and law of the federal court system. It would also
be consistent with the trend in all jurisdictions and in all branches of government, to take
advantage of new technologies and to treat electronic public records as indistinguishable from
other types of public records.
More than 20 years ago, the U.S. Supreme Court held that data stored on computers and
computer tapes can constitute a "record" under the Federal Freedom of Information Act,
Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980). Since then,
the freedom of information laws in nearly every state have either been interpreted to require the
accessibility of electronic records, or have amended to explicitly cover these records. California
recently passed such a law, which took effect January 1, 2001 (Cal. Gov't Code 6253, 6253.9 and
6255 as amended by Stats 2000 ch 982), and local government bodies are taking the same
approach. Just last month, the District of Columbia City Council amended its FOI law to cover
electronic records. (B-13-129). Many state courts have also begun to provide electronic access
to court documents, and they have faced the same questions about privacy that this
Subcommittee is currently considering. The Maryland Judiciary, for example, had been
weighing a proposal that would have permitted only lawyers, police officers and government
officials to access electronic court records through the state's dial-up network connection. After
thorough investigations and the taking of both written and oral comments from the public, the
Judiciary's Committee on Public Access to Court Information decided to withdraw the proposal.
See Eric Siegel and Gail Gibson, "Court records limits dropped," Baltimore Sun, Dec. 20, 2000,
1A. A new task force is being formed to reconsider these issues, but for now the opponents of
access limitations have prevailed. In light of all the factors favoring the expansion of access to
court records, and in light of the flood of pro-access comments received by the Maryland
Judiciary, we believe this Subcommittee should follow the lead of its Maryland counterpart and
reject the proposed restrictions.
Practical Considerations
Finally, the Subcommittee should consider several practical considerations before imposing any
limitations on access to electronic court records. Under Civil Case Proposal #2, a series of new
categories of records would have to be created. The accessibility of these records would depend
on whether or not they fit that category. Coming up with sufficiently precise parameters for these
categories would be exceptionally difficult, and once definitions were adopted, judges would be
forced in every case to evaluate all records to determine which ones fall into the accessible
category and which do not. This would impose substantial workload burdens on judges that
would not serve the public's interest. The current system, in which records are sealed only at the
urging of the party seeking secrecy, is a much more efficient and equitable approach.
Similar problems are posed by Civil Case Proposal #3, which would create a tiered system of
access in which access requests are evaluated based on the identity of person seeking the records.
Not only does this proposal raise serious equal protection questions, it would place extraordinary
burdens on judicial records administrators, who would have to determine in every situation
whether the person seeking access fits into one of the preferred categories. If the categories are
based on identity – for example, "journalists" are afforded access – then how does one determine
who is a journalist? Are alternative news organizations covered? Are reporters for web
publications? And if the categories are based on purpose or function, how is a record
administrator to determine whose interests in the information, or whose intended uses of the
information, are legitimate or worthy?
Conclusion
For all the foregoing reasons, we believe the Subcommittee should reject any proposal that would
place limits on the accessibility of public records via electronic networks. We would be pleased
to provide further comment, including participating in future public hearings.
No. 215
1/26/01
On behalf of individuals: Innocent individuals should not be harmed by inaccurate, false or
personal statements made in court in the name of justice. Testimony of knowledgeable persons
should not be punished by making sensitive data available to the public, where there is no public
benefit.
Guilty individuals should be forgiven if they have paid their dues to society and do not repeat
same or similar injustices.
On behalf of the justice system (judges, lawyers, and others that work in the system):Case law is
an important part of the criminal justice system, since it helps to ensure common treatment and
avoid unnecessary appeals. Those with a need to know case law, or details of similar trials,
should be reasonably available if used responsibly. Court case information should be reasonably
available to those with a need to know. On behalf of society: The United States citizens have a
right to information that is not personal or harmful to others, but would benefit them in their
lives or in a court situation.
Society should be protected from repeat offenders. Therefore, court materials should be made
available to the people in the criminal and civil justice system for responsible use. Private
citizens should not be permitted to review the data without good cause. There are too many
people with "too much time on their hands" and a nosey nature. If sensitive or inaccurate
information is leaked to troublemakers, innocent people may suffer.
As for releasing the last 4 digits of the social security number, please note that many
institutions use the last 4 digits as a PIN number. This could open the door for identity theft and
fraud. Thank you for allowing me to comment.
No. 216
1/26/01
Mary Alice Baish
American Association of Law Libraries
Washington, DC
The American Association of Law Libraries is pleased to have this opportunity to respond to the
Federal Register notice for comments of November 8, 2000 regarding privacy and public access
to electronic case files. We commend the Judicial Conference for seeking broad public comments
on the privacy and security implications of providing public access to court case files through the
Internet. We are pleased additionally that the notice articulates the complexity of these issues and
proposes a variety of alternatives specific to civil, criminal, bankruptcy and appellate case files.
We believe that the public input resulting from this open process of policy making and the
proposal of various options for consideration by all stakeholders will assist the Judicial
Conference in their deliberations towards determining a proper and equitable balance between
electronic public access to case files and privacy concerns.
Founded in 1906, the American Association of Law Libraries (AALL) is a non-profit
professional organization with over 5000 members nationwide that exists to promote and
enhance the value of law libraries to the public, the legal community, and the world; to foster the
profession of law librarianship; and to provide leadership and advocacy in the field of legal
information and information policy.
AALL recognizes that the availability of legal information to all people is a necessary
requirement for a just and democratic society. Accessible government information is not only an
essential principle of our democratic society but also a valuable public good created at taxpayer
expense. It is the obligation of entities in all three branches of government, including the federal
courts, to ensure that government and legal information is permanently available to the public at
no or low cost, in an easily accessible and professionally maintained environment regardless of
format. Hand in hand with the judiciary's responsibility to provide public access to court
information are the equally important citizen needs for the public oversight of justice, the
accountability of the courts and the public's trust and confidence in the judicial system.
Concurrent with AALL's strong commitment to the public's right to access government
information is our equally strong belief that public access through the Internet must be tempered
by privacy rights concerning personal information held in government files and private sector
databases. We support strong federal and state privacy laws that insulate sensitive personal
information from a world of interconnected databases. We support the goal of the Judicial
Conference to determine the proper balance between the responsibility of the federal courts to
provide broad, equitable public access to information and case files and to protect citizens from
harm that may result from broad public access to personal data identifiers, such as Social
Security numbers, that may be contained in these records.
Need to Improve Public Access to Court Information and Case Files
AALL has long been committed to improving the public's access to government and legal
information from all three branches of government, and particularly from the courts. Historically
the federal courts have been slower to embrace new technologies to improve public access than
Congress and executive agencies. For that reason AALL is very proud that several law libraries
located strategically throughout the country initiated a model project in 1994 to make
permanently available through the Internet, at no cost to users, the slip opinions of all federal
appellate courts.
Since that pilot project began, use of the Internet to provide access to government and legal
information has grown exponentially. It is encouraging that over the course of the past several
years, more and more federal courts have developed and maintained publicly accessible web sites
that are becoming increasingly comprehensive. We are pleased to note that many courts are
committed to providing Internet access to valuable information at no cost to users. Another
indication of the courts' increasing use of the Internet to provide access to information is the
relatively new official U.S. Supreme Court web site that was unveiled last spring. We applaud
the progress the Supreme Court has made since then to enhance the site with additional important
content.
The growing trend of Internet use by the public and the legal profession demonstrates the need
for the federal courts to move forward expeditiously towards a more electronic environment for
remote users. We are pleased to note the addition of important content to court web sites,
including case files, available through the Internet. However, we strongly urge the Judicial
Conference to set a common standard across all federal courts to ensure that final decisions, not
just the slip opinions, are posted on the Internet for broad public access.
Challenges of Electronic Public Access
While we commend the progress of the courts to provide more information through the Internet,
including posting case file documents, we are confidant that the Judicial Conference recognizes
the important responsibility to ensure the authenticity and integrity of all electronic court
information, in addition to the recognition of privacy concerns. Electronic access through the
Internet is a powerful capability to capture and broadly make available to the public massive
amounts of personal information about individuals. We share the Judicial Conference's concerns
that enhanced electronic access to case files may provide individuals and commercial entities the
opportunity to disclose and exploit personal information. We believe that individuals must be
aware of and be able to control how their personal information is disseminated and used. We see
potential harm to individuals when: 1) commercial entities collect and aggregate a variety of
publicly available personal information into personal profiles that are sold for profit; and 2)
publicly available personal information leads to criminal activity, such as identity theft or
stalking.
Of equal concern to protecting the privacy of individuals from these abuses, however, is
determining a proper and just balance. The courts should not overreach and use privacy as a scare
tactic to seal records that should be available to the public or to the press for legitimate purposes.
We do not believe that the courts should abridge First Amendment rights to public court records
even though there are complex privacy considerations. Certainly the media, citizen groups, the
general public, employers seeking information for background checks or investigators use
information derived from court records for legitimate purposes.
Misuse of Personal Information Causes Harm
There are many types of sensitive personal identifiers that, on there own, pose great risks to the
loss of privacy; when aggregated, the risk of personal harm likely is increased. Unfettered public
access through the Internet of an individual's Social Security number, date of birth, medical
records, ethnic or racial identification, credit card numbers or other financial information can
lead to a loss of privacy, to identity theft or other crimes, such as stalking.
An egregious recent case of identity theft is described in the written testimony of Michelle Brown
for the July 12, 2000 hearing on "Identity Theft: How to Protect and Restore Your Good Name"
before the Senate Committee on the Judiciary's Subcommittee on Technology, Terrorism and
Government Information (http://www.privacyrights.org/victim8.htm). While not directly
attributed to the loss of personal information contained in court records, it is nonetheless an
illustrative example of the personal harm caused by the growing number of identity theft cases.
The perpetrator stole Ms. Brown's personal identifiers from the property management office of
the victim's landlord, and then used this information to obtain over $50,000 in goods and
services, to rent properties, to get a duplicate driver's license and to engage in federal criminal
activities. When the perpetrator was arrested in Texas for smuggling 3,000 pounds of marijuana,
the arrest was recorded in the victim's name. Even after the identity theft was revealed to the
criminal justice system, the perpetrator was still booked as an inmate under the victim's name and
continued to use the victim's name on her prison correspondence. At one point, the victim was
even detained at the Los Angeles Airport (LAX) by U.S. Customs officials because the DEA had
posted a lookout for her in the system.
Press releases issued by the U.S. Department of Justice (DOJ) include a myriad of other
examples of identity theft:
http://www.usdoj.gov/usao/cac/pr/061.htm – A woman falsely used another's SSN to get
thousands of dollars in credit, and then declared bankruptcy in the victim's name.
http://www.usdoj.gov/usao/cac/pr/pr2000/016.htm – A man stole private bank account
information about an insurance company's policyholders and used that information to deposit
three-quarters of a million dollars in counterfeit checks.
http://www.usdoj.gov/usao/fls/TERKESHALANE.html –A woman obtained a fraudulent
driver's license in the name of the victim and then used the license to withdraw over $13,000
from the victim's bank account.
These are not unique examples of the crisis in identity theft caused by the misuse of personal
information found in public records or commercial databases. In a letter to the DOJ dated
September 22, 2000, staff of the Federal Trade Commission's Bureau of Consumer Protection
noted that the FTC's free hotline for reporting identity theft incidents averaged over 1,000 calls
per week during the months of July and August 2000 (http://www.ftc.gov/be/v000013.htm).
Stalking is another serious crime that may occur when a potential victim's personal information
is easily available through public records. The classic example is the 1989 murder of actress
Rebecca Schaeffer, whose stalker found her unlisted address through California motor vehicle
records. Her murder led to enactment of the 1994 Driver's Privacy Protection Act, upheld by the
Supreme Court last year. Another stalking incident that has received considerable attention, and
spawned failed federal legislation, is the murder of Amy Boyer, whose stalker obtained personal
information about her from a company called Docusearch. Details about how the Docusearch
service operates and the type of personal information it sells are included in the statement of
Robert Douglas during the September 13, 2000 hearing on "Identity Theft and Related Financial
Privacy Issues" before the House Committee on Banking and Financial Services
(http://www.house.gov/banking/91300dou.htm).
Striking A Proper Balance Between Access and Privacy
Before commenting specifically on the various options proposed in the Federal Register notice,
AALL has reached several conclusions:
First, we believe that there is a need for national uniformity across the federal court system and
that the sealing of records on a case-by-case basis is not the optimum solution. It would be far
preferable for the Judicial Conference to institute uniform practices for district courts rather than
relying on the conscientiousness of counsel or pro se litigants to make sure that sensitive
information is protected, or upon the discretion of judges to protect privacy interests.
Second, the content of electronic court files should be identical, whether they are publicly
accessible at the courthouse or through the Internet. As noted earlier, case files may contain
sensitive information such as Social Security numbers, medical information, financial records or
other personal identifiers. In addition, while public access to electronic records may appear on
the surface to pose a greater threat to privacy, if sensitive personal information is contained in a
print record that is publicly available at a courthouse, it is likely to find its way into aggregated
databases of personal profiles. Therefore the specific types of personal identifiers and other
sensitive data that may cause an individual harm should not be made part of the public record in
any format.
Third, we urge the Judicial Conference to consider a hybrid solution among the various options
that have been proposed, with special consideration as to who the user is and what use would be
made of the personal information. We note in Los Angeles Police Department v. United States
Reporting Publishing Corp. (528 U.S. 32) the Supreme Court found no defect in limiting access
to public records based on state law requiring users to show "the request is made for a scholarly,
journalistic, political, or governmental purpose or . . . for investigation purposes." To protect
privacy, the California law in question requires users to declare that no address information
obtained from records would be used to sell a product or service.
Similarly, we see the possibility for a hybrid solution wherein certain types of personal identifiers
– such as Social Security numbers, medical records or financial information – would be isolated
into a private file to which there would be separate levels of access depending on the requestor's
relation to the court and his or her purpose. For example, we believe the court and certain key
participants in the judicial process might be granted unlimited access to certain files, while access
by other persons would be restricted. Such private files could be password protected to allow
remote access by legitimate users.
Fourth, the Freedom of Information Act (FOIA) and the Privacy Act that govern the public
disclosure of executive branch records may provide instructional models for the Judiciary. We
believe that the Judicial Conference may wish to investigate the possibility of legislative
provisions similar to FOIA and the Privacy Act that would permit the disclosure of electronic
court files for certain legitimate purposes while guaranteeing that sensitive personal information
contained in them would be redacted.
Proposed Options for Civil, Criminal, Bankruptcy and Appellate Case Files
Civil Case Files
AALL does not support Option 1, the case-by-case sealing of specific documents, for the reasons
noted above. We believe that national uniformity is a desired standard.
We support Option 2 to the extent that it would make available the identical "public file,"
whether accessed on-site or remotely through the Internet. Common guidelines would have to be
developed to determine the contents of the "public file" and/or the types of sensitive personal
information that would need to be redacted from the records. This option would likely be very
burdensome for the courts, however.
Option 3, suggests different levels of access that would permit electronic remote access by
legitimate users—the judges, court staff, parties and counsel—but properly restrict certain
sensitive case file information from broad electronic access by the general public. We disagree,
though, with the concept of this option to make the complete electronic file available on-site for
public review. As noted earlier, sensitive information available on-site in these electronic files
will easily work their way into aggregated databases, thus the potential for harm to personal
privacy would still exist. We believe that such sensitive information as Social Security numbers,
date of birth, medical or financial information, or employment or tax records, should not be
available to the general public in any format.
Option 4 regards the possibility of amending the Federal Rules for Civil Procedure. It is our
understanding that it would likely take two to three years for a recommendation by the Judicial
Conference for any amendment to the Federal Rules for Civil Procedure to be approved. The
urgent need for a more timely resolution to the important issue at hand would seem to exclude
this option from your c consideration.
Criminal Case Files
It is clear that public access to criminal files may threaten the client's right to privacy. We
support Option 2, which provides limited electronic public access to "public file" documents
while restricting access to potentially harmful information to the parties, counsel, certain court
employees and the judge. As with civil case files, we believe that the content should be the same,
whether the documents are available on-site or remotely through the Internet or other electronic
means.
Bankruptcy Case Files
Broad public electronic access to bankruptcy case files involves the greatest threat to the misuse
of personal identifying information. Bankruptcy case files include a wide scope of personal
financial and other sensitive information that, we believe, should not be part of the public record
in any format. The high risk of identity theft to commit fraud or other unlawful activities from
unfettered public access to information common to bankruptcy case files—such as Social Security
numbers, bank account and credit card information, etc...—outweighs the public's right to access
this information.
The Office of Management and Budget, the Department of Justice and the Department of the
Treasury recently released a Study of Financial Privacy and Bankruptcy (January 2001). This
Study proposes recommendations on how a better balance can be struck between public access to
bankruptcy case files and privacy protection. We agree with its major findings, including that the
general public should not have access to highly sensitive information that poses substantial
privacy risks and that access by interested parties to non-public sensitive data be subject to re-use
and re-disclose limitations (p. iv). The Study, mirroring our own comments, further distinguishes
between three basic models: restricting access based upon the content of the information, the
identity of the recipient of the information, or the recipient's intended use of the information.
We agree with many of the Study's recommendations and would like to point out two that are
especially pertinent: 1) that when parties in interest have access to a wide range of non-public
information, they should generally be prohibited from reusing or re-disclosing the information for
purposes unrelated to administering the bankruptcy case; and 2) that detailed information that
appears in a bankruptcy filing should be available to researchers in a way that does not identify
the individuals.
Of the options proposed for bankruptcy case files, we prefer Option 4 that would require the
segregation of certain personal information from a "public file" by collecting it on separate forms
that would be accessible only to the courts, the U.S. trustee, and the parties.
Appellate Case Files
AALL supports Option 2 which applies the same access rules to appellate courts that apply at the
trial court level but allows a challenge by the appellate court to any restriction.
Conclusion
AALL strongly supports the progress that the federal courts are making to provide broad public
access to their records, including electronic case files. Indeed, it is the affirmative obligation of
the Judiciary to ensure both current and permanent public access to these records at no or low
cost. It is quite clear that electronic public access to government and legal information is a
growing trend and that the American public expects to locate and to gain access remotely through
the Internet to more court information than is generally available today. However, increased
broad public access to court records through the Internet, including case files, poses a potential
threat to individuals by making sensitive personal information easily available in ways that result
in a loss of privacy and potential harm. We commend the Judicial Conference for its concern for
the protection of privacy as it seeks to improve access to court records.
Thank you very much for the opportunity to comment on various policies under your
consideration to address the need for balance between the electronic availability of court case
files and personal privacy and security concerns. AALL President Robert L. Oakley, Director of
the Law Library and Professor of Law, Georgetown University Law Center, would be very
interested in participating in any subsequent public hearing held by the Judicial Conference
regarding these complex issues.
No. 217
1/26/01
Ed McCool, Esq.
Philadelphia, PA
This should not be done just because it can be done. A substantial public need for such internet
access must be demonstrated first. This articulated need is to be then weighed against the
substantial risks for abuse presented by internet access. I do not believe such a substantial public
need is there. I do not believe it's existence should be presumed. The risks of abuse and
mischief brought about by the convenience of access, under the illusory cover of anonymity, are
too high.
No. 218
1/26/01
Chris Hoofnagle
Staff Counsel
Electronic Privacy Rights Information Center
Washington, DC
Pursuant to the notice published by the Administrative Office of the United States Courts
regarding privacy and public access to electronic case files on November 13, 2000, the Electronic
Privacy Information Center (EPIC) submits the following comments and requests to participate
in a public hearing.
EPIC is a public interest research center in Washington, D.C. It was established in 1994 to focus
public attention on emerging civil liberties issues and to protect privacy, the First Amendment,
and constitutional values. EPIC both advocates for the right of privacy and pursues access to
government records under the Freedom of Information Act. EPIC appreciates this opportunity to
comment on public access to electronic case files (ECF), as it is an issue of increasing public
importance and will eventually affect all who have some contact with the courts.
Reconciling the public access and privacy interests associated with ECF involves complex and
important issues. Accordingly, the comments below will consist principally of suggestions and
narrow points to be considered in any system that provides public access to ECF.
Public access to ECF brings both benefits and risks to the public. Greater public access into the
workings of the court system will provide citizens with tools to evaluate the court system. This
increased accessibility will foster greater confidence in government and the courts. Public access
to ECF will provide more opportunities for scholars, journalists, and researchers to provide
insight into the nature of government. Courts will also benefit from the improved efficiency that
ECF offer.
As a strong advocate of open government, EPIC supports the right of public access to judicial
records found in common law. In Nixon v. Warner Communications, Inc., the Supreme Court
noted that, "It is clear that the courts of this country recognize a general right to inspect and copy
public records and documents, including judicial records and documents."
To further these important benefits and precedent in law, EPIC believes that public access to
court records should be promoted. To the extent that court records are made available
electronically, the public interest would be best served by providing comprehensive access to all
courts over the Internet rather than the existing "dial-up" systems that are associated with some
courts. Further, this access should be available free or at the lowest possible fee to the public.
Public access to ECF creates new benefits for citizens, but it also heightens risks to personal
privacy. For administrative purposes and the operation of the legal process, litigants and other
persons associated with cases are required to divulge information to courts. This information is
sometimes sensitive. It includes personally identifying information, medical records, tax records,
information regarding family relations, pre-sentence reports, and plea agreements. Bankruptcy
case files contain especially sensitive information, including social security numbers, records of
cash flows, account numbers, asset holdings, and debts owed. In electronic form that is publicly
accessible this information could be exploited for unintended and harmful secondary uses.
Certain risks of public access to ECF are readily identifiable: unhindered access to bankruptcy
case files may result in a further increase in identity theft. Bankruptcy records provide all the
keys that an identity thief needs to take advantage of persons who have already experienced
financial difficulty. Often, victims are unaware that the crime occurred until many months after
an impostor steals their identity. Victims typically expend considerable time and expense to
regain their credit rating and to clear any criminal record that the impostor may have accumulated
while posing as the victim.
The convenient availability of medical information, information on intra-familial conflict, and
other sensitive information contained in case files present personal privacy problems. Potential
employers, insurance companies, stalkers, or other parties simply interested in the misfortune of
others could use this information to screen, deny coverage, or to harm former litigants and
witnesses.
Data aggregators and marketers may take advantage of compiled records to target advertising at
former litigants and witnesses. In many cases, this targeted advertising may serve as a reminder
of incidents best forgotten. The disclosure of certain personal information necessary in the
context of litigation could unfairly stigmatize a litigant in the pursuit of employment or
educational opportunities.
Security is also an important aspect of public access to ECF. Persons with criminal histories may
attempt to access case files to erase or alter their arrest history or conviction record. It is
foreseeable that a bad actor may attempt to transfer a criminal history to another person on the
database. Even worse, there may be attempts to create false criminal records in the names of
innocent persons.
The Court has recognized limits to the right of public access in order to address the risk to
personal privacy that may occur from these secondary, improper uses of personal information. In
Nixon, the Court qualified the general right in favor of access to judicial records, "It is
uncontested, however, that the right to inspect and copy judicial records is not absolute. 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. For example, the common-law
right of inspection has bowed before the power of a court to insure that its records are not 'used to
gratify private spite or promote public scandal' through the publication of 'the painful and
sometimes disgusting details of a divorce case.'"
In other decisions, the Court has recognized legitimate privacy interests that qualify a right to
access public records and other records held by government. In DOJ v. Reporters Committee for
Freedom of the Press, the Court denied access to criminal "rap" sheets, aggregate summaries of
criminal histories compiled from multiple jurisdictions. The Court in that case found a privacy
interest in information that was publicly accessible, but because it was stored in courthouses
across the country, the information remained "practically obscure." In denying access to the rap
sheets, the Court noted that, "Plainly there is a 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." The Court concluded, "Accordingly, we hold as a categorical matter that a third
party's request for law enforcement records or information about a private citizen can reasonably
be expected to invade that citizen's privacy, and that when the request seeks no 'official
information' about a Government agency, but merely records that the Government happens to be
storing, the invasion of privacy is 'unwarranted.'"
In Los Angeles Police Department v. United Reporting Publishing Corporation, the Court denied
a First Amendment challenge to a statute that limited commercial access to arrest records. The
statute allowed the public access to the records for scholarly, journalistic, political, or
governmental purposes. The company that challenged the law used arrest records to target
adverting to recent arresters, and argued that the statute unconstitutionally burdened commercial
free speech rights. The Court held that the statute simply allowed the government to deny access
to information that it possessed.
As stated above, public access to ECF brings both benefits and risks. The challenge is to
formulate a scheme that guarantees robust access to public records while also preventing
unwarranted invasions into the personal matters of litigants and witnesses. In order to address
both of these important interests, EPIC offers the following suggestions:
In the civil case context, the request for comment (RBC) proposed four alternatives for
addressing privacy concerns. Of the four, the "public file" alternative addresses both the access
interests and the privacy interests most effectively. Under that alternative, parties and court
officers will have full access to the entire case file. A second file, redacted for sensitive personal
information, will be available at the courthouse and online. The difficulty in this approach lies in
the determination of what information should be redacted for privacy interests, and what
information is necessary for an understanding of the case.
The other alternatives in the civil context suffer from weaknesses that are more likely to result in
privacy violations. The first alternative, which would make the entire file available online, fails
to address the risks and likely misuses of information provided to the courts. The third
alternative, establishing levels of access to electronic case file information, suffers from
weaknesses as well. Under that system, the entire file would remain unredacted for sensitive
information at the courthouse. As noted in the RBC, this approach does not limit how case files
may be copied or disseminated once obtained at the courthouse.
The last alternative calls for an amendment to the Federal Rules of Civil Procedure (FRCP) to
account for privacy and security interests. This alternative may go far in strengthening privacy
interests and raising public awareness of the risks involved in the misuse of personal information
contained in case files. Currently, no Federal Rule specifically delineates a framework for
addressing the privacy interests involved with case files. EPIC recommends that should an
amendment to the FRCP be sought, the rule should only extend protections to persons, as
opposed to trade secrets that may be asserted by a corporation.
In the criminal context, the RBC proposed two alternatives for addressing privacy concerns. The
first would simply deny all public access to criminal case files. This alternative fails to recognize
the strong interests of the public in having access to all aspects of criminal prosecutions.
The second alternative addresses the interests of public access and personal privacy protection
more effectively. Under this alternative, limited public access to electronic case files would be
provided. Sensitive information such as pre-indictment documents, presentence reports, plea
agreements, and unexecuted warrants would only be available to the parties and court officers.
The public would still have access to the indictment and the final decision of the court.
In the context of bankruptcy files, the RBC contains several alternatives for addressing privacy
concerns. The last, a system where sensitive information would be segregated and collected on
separate forms protected from public access would address the public access and privacy
interests involved most effectively. Sensitive information required in a bankruptcy filing, such as
Social Security and account numbers do not impart a meaningful social or political message to
the public. These numbers are not needed by the public to evaluate the court system. In this
context, the privacy interests in keeping this information secure outweigh the public interest in
access.
In the context of files held by appellate courts, EPIC recommends that the same access rules
apply that were employed at the trial court level.
EPIC recommends also that these approaches could be implemented on an experimental basis in
several different circuits. Attempting a number of different pilot projects may be the most
efficient method of evaluating the consequence of public access to court records. In any case, the
public would benefit by a comprehensive review of the system adopted at a fixed time in the
future.
No. 219
1/26/01
Trial Lawyers for Public Justice
Oakland, CA
Trial Lawyers for Public Justice ("TLPJ") respectfully submits the following public comments in
response to the Request for Comment on Privacy and Public Access to Electronic Case Files
("Request for Comment") issued by the Administrative Office of the United States Courts.
TLPJ also respectfully requests that TLPJ Staff Attorney Victoria Ni be permitted to participate
in a public hearing on the matter, in the event one is held.
TLPJ urges the federal judiciary to adopt an approach that would make court files available
through remote electronic means to the same extent that those files are now available in paper
form. The public should receive the benefits of new technological advances in the judiciary's
case management system, because greater ease of access to court records promotes the policy
goals that justify our long tradition of open government and open courthouses. Conversely,
limiting access to electronic case files or presumptively sealing court records based on content
due to fears of technology would substantially undermine the public's right of access to our
courts. Our more detailed comments are set forth below.
Interest of TLPJ
Trial Lawyers for Public Justice is a national public interest law firm dedicated to using trial lawyers'
skills and approaches to advance the public good. Litigating throughout the federal and state courts,
TLPJ prosecutes cases designed to advance consumers' and victims' rights, environmental protection
and safety, civil rights and civil liberties, occupational health and employees' rights, and protection
of the poor and the powerless.
TLPJ is also dedicated to ensuring the proper working of the civil justice system and open access to
our courts. For over a decade, we have had a special project – Project ACCESS – that opposes
unnecessary court secrecy as a threat to public health and safety, the fair and efficient administration
of justice, and our democratic system of government. As part of Project ACCESS, TLPJ has
intervened in a wide variety of cases to fight for the public's right to know. For example, on behalf
of three consumer advocacy groups, TLPJ filed a motion to intervene and unseal the court file in
Foltz v. State Farm Mutual Automobile Insurance Company, a case filed in the United States District
Court in Eugene, Oregon, that had been virtually erased from the public record following a secret
settlement between the parties. Foltz involved allegations of consumer fraud, and, upon settlement,
the district court authorized the sealing of the entire file of the four-year-long case, erased the docket
sheet from the court's computer system, and permitted State Farm to remove case files from the
courthouse. As a result of TLPJ's motion, the court ordered that the case files be returned to the
courthouse and the docket sheet be restored in the court's record keeping system. However, the
court has continued to bar public access to many pleadings and court orders that were publicly
available prior to the settlement. TLPJ is continuing its fight for public access.
TLPJ does not handle criminal or bankruptcy matters, and therefore is not in a position to offer
comments with regard to public access to electronic criminal or bankruptcy case files. Our
comments are directed solely at the policy option to make civil case files, including appellate civil
case files, accessible to the public through electronic means such as the Internet.
Comment on Public Access to Electronic Federal Court Case Files
I. Remote Public Access to Electronic Civil Case Files Furthers the Policies Underlying the
Common Law and First Amendment Rights of Public Access to Court Records.
The public's right to inspect and copy court records is well-established. Nixon v. Warner
Communications, Inc., 435 U.S. 539, 597 (1978). This presumption in favor of public access to
court records is protected by both the common law and the First Amendment of the United States
Constitution. See, e.g., Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066-70 (3d Cir. 1984)
(stating that, in addition to the common law, "[t]he ‘First Amendment embraces a right of access to
[civil] trials . . . .'") (citation omitted). Open court records, like open court proceedings, serve to
enhance the basic fairness of the proceedings and safeguard the integrity of the factfinding process.
Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984); Globe Newspaper Co. v. Superior
Court, 457 U.S. 596, 606 (1982). Not only does the public's ability to monitor the functioning of
our courts "diminish[] possibilities for injustice, incompetence, perjury, and fraud," but it also
improves the public's understanding of and confidence in the judicial system. Littlejohn v. BIC
Corp., 851 F.2d 673, 678 (3d Cir. 1988). Even more fundamentally, the public's right of access to
judicial records helps to reinforce democratic ideals, ensuring that the constitutionally- protected free
discussion of governmental affairs is an informed one. Publicker Indus., 733 F.2d at 1070 (citation
omitted).
Secrecy in the court system, on the other hand, too often places public health and safety in jeopardy.
Overly broad confidentiality orders hide from public view critical information regarding hazardous
products or unscrupulous individuals and companies, and prevent the public from being able to
protect itself from otherwise avoidable risks. See Lloyd Doggett & Michael J. Mucchetti, Public
Access to Public Courts: Discouraging Secrecy in the Public Interest, 69 Tex. L. Rev. 643, 648-49
(1991). Bridgestone/Firestone, for example, utilized court-sanctioned confidentiality orders in cases
filed across the country to hide information about hundreds of injuries and deaths linked with a
persistent tread separation problem with its tires. As a result, for nearly a decade, the public and
government agencies were unaware of the extent of the problem, and unsuspecting consumers
continued to buy, and rely on, the potentially deadly Firestone tires. See Thomas A. Fogarty, Can
Courts' Cloak of Secrecy Be Deadly? Judicial Orders Protecting Companies Kept Tire Case Quiet,
USA Today, October 16, 2000, at 1B. Furthermore, secrecy orders "give cover" to attorneys and
their clients who try to engage in "stonewalling," or the withholding of relevant documents and
information during discovery. In other words, the more secure a party is that the information at issue
will not be revealed from other sources, the more emboldened the party will be in denying the
existence of that information. See Doggett & Mucchetti, Public Access, at 650.
TLPJ believes that the presumption of openness in our courts should continue to govern as the
judiciary modernizes its case management system, and that as long as files are deemed to be "public"
files, they should be accessible by the public using the most convenient means available. The use
of technology to bring public court records to a wider audience would further the policies embodied
in the presumption of open courts that is rooted in our common law and Constitution. It would bring
more accountability to both the bench and the bar, help demystify the court system, and promote the
free flow of information that is so cherished by our democratic society. It would also help bring to
light information pertinent to public health and safety that could potentially save lives. Accordingly,
TLPJ supports the adoption of the first policy option set forth in the Request for Comment with
regard to civil case files, which would "[m]aintain the presumption that all filed documents that are
not sealed are available both at the courthouse and electronically."
II. Proposals to Limit Public Access to Electronic Case Files and/or Entire Categories of
Information in Court Records Are Contrary to the Policies Underlying the Common Law and First
Amendment Rights of Public Access to Court Records, and Are Attempts, in Effect, to Circumvent
the Presumption of Openness. Given the strong and well-established presumption that court records
should be accessible to the public, any restriction on public access should require special justification
on a case-by-case basis. In general, TLPJ believes that the mere fact that otherwise-public records
are stored and available in computer-readable form does not qualitatively transform them into
sensitive records to which access should be restricted. If records are available to the public in paper
form, then they should be treated no differently when they are stored in electronic form. To restrict
access to case files simply because they are electronic in form – as contemplated by policy option
number three – would erect artificial barriers to public access, be contrary to the policies underlying
our long-standing tradition and presumption of open courts, and effectively undermine the common
law and First Amendment rights of public access to court records.
Even more troubling is the second policy option identified in the Request for Comment. In order to
account for privacy concerns, it would propose to eliminate entire categories of information from
the public record – consisting of both paper and electronic files – thereby shifting the presumption
from openness to secrecy with respect to those categories. This approach would be entirely contrary
to current law, which clearly places the burden on the party seeking to seal court records to make a
particularized showing that its interest in secrecy outweighs the presumption of access, and requires
a case-by-case balancing of interests. See, e.g., Bank of Am. Nat'l Trust and Sav. Ass'n v. Hotel
Rittenhouse Assocs., 800 F.2d. 339, 346 (3d Cir. 1986); see also Fed. R. Civ. P. 26(c) (requiring
party moving for a protective order to show "good cause1
Those who oppose electronic access to court records claim that such means of access will result in
widespread and undesirable dissemination of "private" information. However, privacy concerns,
even in this age of technology, may be addressed under existing law, which provides for protective
orders where secrecy can be justified, and for civil or criminal liability in instances of negligent use
or criminal use of private information. Indeed, whether information is considered private should not
depend at all on whether the information is found on paper or on a computer. Nor is the judiciary
particularly well-suited to police all possible "secondary" uses of information in otherwise-public
files, and it should not be in the business of making access to public records more difficult, rather
than less, based on generalized privacy concerns. As a subcommittee of a New Jersey Supreme
Court policy committee found after studying the issue of electronic access: "[I]t is [not] the role of
the courts to restrict or suppress access to otherwise public information, gathered and maintained at
public expense, based on the possibility that it might be used to the prejudice of individuals in certain
cases." Notice to the Bar, Report and Recommendations of the Public Access Subcommittee of the
Judiciary Information Systems Policy Committee, N. J. Lawyer, December 30, 1996, at 21.
Conclusion
As a matter of policy, secrecy in our courts should be the exception rather than the rule. Current
strides in technology do not substantially alter the policy considerations that underlie common law
and constitutional principles favoring public access to court records. To the extent that privacy
concerns exist, they are properly addressed on a case-by-case basis, taking into consideration
particularized showings of harm to privacy interests. Privacy concerns should not, however, be
addressed by indiscriminately sealing documents or information of an entire category. For these and
the other reasons set forth above, we urge the federal judiciary to allow the public to have remote
electronic access to civil case files to the same extent that those files are now available in paper form.
No. 220
1/26/01
American Insurance Association
Washington, DC
The American Insurance Association ("AIA") is filing these comments in response to the request by
the Judicial Conference of the United States regarding public access via the Internet to electronic
case files. The AIA is a national trade association representing 380 property casualty insurance
companies. Collectively, our member companies are major stakeholders in the judicial process,
defending their policyholders in more than 100,000 new lawsuits each year.
AIA commends the Judicial Conference for the considerable progress by the federal courts in
modernizing the means by which the courts communicate with litigants and the public at large. As
frequent litigants, our members have benefitted from these advances, and encourage the Judicial
Conference to continue to seek ways of bringing greater efficiency to the judicial system.
The issue at hand is to what extent should federal court case documents be publicly accessible over
the Internet. In our view, posting most case documents on the Internet would return cost efficiencies
to many litigants, with little to no foreseeable harm. However, we are concerned about the potential
consequences of making highly sensitive, personally identifiable information available over the
Internet.
AIA believes that the questions posed by the Judicial Conference are fundamentally important public
policy decisions, and not merely process decisions. Consequently, we urge the Judicial Conference
to examine these issues carefully before implementing any procedures that could have adverse
implications regarding the privacy of sensitive, personally identifiable information.
Please feel free to contact me if you have any questions or would like additional information.
No. 221
1/26/01
Dan Rode
VP, Policy and Government Relations
American Health Information Management Association
Washington, DC
The purpose of this letter is to respond to your request for "Comment on Privacy and Public Access
to Electronic Case Files" as published in the Federal Register on Wednesday, November 8, 2000.
The American Health Information Management Association (AHIMA) is pleased to have this
opportunity to respond to the Subcommittee on Privacy and Electronic Access to Case Files outline
of policies under consideration by the Court Administration and Case Management Committee.
AHIMA is a professional association that represents more than 40,000 specially educated health
information management professionals who work throughout the healthcare industry. Health
information management professionals serve the healthcare industry and the public by managing,
analyzing, and utilizing data vital for patient care and making it accessible to healthcare providers
when it is needed most.
Overall we believe the concepts in the notice ignore the need to keep personal health information
private and confidential. Many our members are custodians of health records or medical records that
exist on paper and electronic media. As custodians of personal health information, our members are
required by federal and state laws to maintain the privacy and confidentiality of such records and
information.
As health information custodians, AHIMA members are often required provide copies of protected
health information to the judicial system through court orders, warrants, subpoenas or summons
issued by a court or grand jury. Our members are also called to testify as to the validity of these
same records.
While the November notice identifies that many court records have been open to public scrutiny, our
members have worked with officers of the court to ensure that the minimum of personal health
information was places in such records. Up to now there has also been some "security" in knowing
that for the most part court records that included personal health information were usually viewed
only by the parties involved with the case.
The Subcommittee's notice raises the potential for the public to have free access to electronic records
of the court. It further notes that most court document will become electronic and accessible to the
public through the Internet and systems such as the Public Access to Court Electronic Records. One
can imagine some one "cruising the web" to check in on a neighbor's case or even more dangerous
situations.
AHIMA is concerned that personal health information that is legally required to be kept private and
confidential will become public due to the courts potential open electronic system. Such information
will not only relate to the immediate parties in a case, but also could affect third parties who might
have segments of their private health information contained in another individual's medical record.
As noted above, health records are often required for various types of court cases, and while
disclosure of such information is necessary for the court, it is not meant for public consumption.
It is suggested on page 65FR67018, under the discussion on civil case files, that "levels of access"
might be created so that in the case of medical records or personal health information, such
information could be limited to only the direct parties in the case. This makes sense and would meet
most of our concerns, however, we believe that additional revision to the Federal Rules on Civil
Procedure will be needed to ensure that these parties do not inappropriately disclose personal health
information.
There are many Federal privacy rules that we hope the subcommittee will review to ensure maximum
protection of healthcare information. On December 28, 2000, the Secretary of Health and Human
Services Released the final Standards for Privacy of Individually Identifiable Health Information
(Federal Register, Vol. 65, No. 250, Page 82462.). This rule comes under the Health Insurance
Portability and Accountability Act of 1996 (HIPAA) (P.L. 104-191). While the HIPAA Privacy rule
covers such health information that is under the jurisdiction of the court, we hope that the
Subcommittee will consider its provisions to afford such protections, including penalties. Under
HIPAA, such penalties can run up to 10 years in prison and $250 thousand in fines.
The November 8 notice also relates that it is anticipated that there will come a time when
information relevant to court cases will be sent and received electronically. As the court considers
this eventuality we hope that it will consider requirements for protecting such transmissions through
encryption, authentication, and other such security steps associated with electronic data protection.
AHIMA and its members have been and are actively involved in not only privacy and confidentiality
protections for healthcare records and information, but also for the maintenance and transmission
such information as it is sent and kept in electronic format through the Internet. As the
Subcommittee recognizes such practices require attention and resolution, AHIMA and its members
stand, ready to assist the Subcommittee in its recommendations and long term information
procedures and protections. Please contact our office if there is any additional information we might
provide or if we can work with the committee to determine solutions to this electronic environment.
No. 222
1/26/01
Privacy Rights Clearinghouse
San Diego, CA
The Privacy Rights Clearinghouse and the Electronic Frontier Foundation are pleased to respond to
the Judicial Conference's request for comments regarding access to electronic case files. It would
be our privilege to participate in a public hearing on this topic should one be held by the Conference.
The Privacy Rights Clearinghouse (PRC) is a nonprofit consumer information and advocacy program
based in San Diego, California. The PRC was established in 1992, and since that time, we have
counseled thousands of consumers on a variety of privacy-related issues. Issues include identity theft,
credit reporting, telemarketing, "junk" mail, Internet privacy, medical records, and workplace issues.
The PRC responds to consumers through a hotline, written guides and a web site that is continually
updated to include testimony given by the PRC in both state and federal forums on pending privacy
legislation and administrative policy. See www.privacyrights.org .
The Electronic Frontier Foundation (EFF) is the leading civil liberties organization working to
protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry
and government to support free expression, privacy, and openness in the information society. EFF
is a member-supported organization and maintains one of the most linked-to Web sites in the world.
See www.eff.org.
The EFF joins the PRC in submitting these comments to highlight that court proceedings of all types
are yet another area in which the law has failed to protect against threats to an individual's privacy
in their personal information once that information has been made available electronically.
Electronic Access to Court Files Versus Privacy Interests
The PRC and EFF recognize the long tradition of open access to public court records. However, as
principles of open access evolved in constitutional and common law, the state of today's technology
could never have been envisioned. The judicial branch is wise to seek to balance the competing
interests of maintaining tradition while recognizing the potential harms to fundamental privacy rights
as well as security of electronically stored personal data.
We recognize the convenience to the courts and counsel in electronic filing, the need to reduce paper
files, and the long-standing principles of public access to court proceedings. However, the PRC and
EFF believe the potential for both intangible invasions of privacy by those who have no need to
know and more tangible harms such as identity theft outweigh reliance on a system that provides full
access to court records electronically. Convenience and storage problems in this electronic age need
to be addressed, but hopefully in such a way as to protect not only the public interest by providing
access to public records, but to protect privacy interests as well. Accordingly, we hope our comments
will help the Conference in its efforts to achieve this balance.
1. Identity Theft
At the core of the PRC's information and education program is the belief that all individuals have
the right to control how their personal information is disseminated and used. This right is particularly
important when the information at stake is personal financial and medical information likely to be
included in civil, criminal or bankruptcy proceeding. The fundamental right to privacy should not
be surrendered simply because an individual becomes a party to a court proceeding. Nor should
witnesses, particularly victims, have to fear easy electronic access by anyone to their name, address,
telephone number, Social Security number, tax returns and much more.
While the loss of control over personal information can be viewed in various ways with any number
of results, the crime of identity theft is a most tangible result of the unfettered flow of personal
information. The PRC has seen an alarming increase in the number of identity theft victims over the
past few years. We have established an auxiliary program aimed exclusively at helping victims of
this crime.
It seems appropriate here to share some important facts on the increasing crime of identity theft,
which is certain to be fueled by easy, online access to names, addresses, telephone numbers, Social
Security numbers, and often personal financial information. First, the variations on identity theft are
limited only by the imagination of the thieves involved. It occurs when someone uses bits and pieces
of personal information about an individual, often the Social Security number, to represent him or
herself as that person for fraudulent purposes.
The thief may use personal information to obtain a credit card, a loan, open utility accounts, rent an
apartment or even to complete major transactions such as purchasing a car or a home. Based on
information obtained from a 1998 U.S. General Accounting Office report ("Identity Fraud," Report
No. GGD-98-100BR, 1998, p.40, www.gao.gov ) and the Trans Union credit reporting agency
(CRA), the PRC estimates the number of victims of identity theft in 2000 to be 700,000.
A recent study conducted by the PRC in coordination with the U.S. and California consumer
organizations U.S.PIRG and CALPIRG (Public Interest Research Groups) describes many of the
problems and frustrations experienced by victims of identity theft. This study is available at the PRC
web site www.privacyrights.org/ar/idtheft2000.htm. As the study notes, victims of identity theft
often spend years restoring their financial health, and in extreme cases, victims are astonished to
learn that they have criminal records because an identity thief has committed crimes in their name.
Social Security numbers, credit card numbers, loan account numbers, dates of birth, and bank
account numbers represent a gold mine to dishonest individuals as well as the rising number of
organized criminal enterprises and gangs that specialize in systematic identity theft. As previously
noted, the Social Security number is the key piece of personal information most commonly
associated with identity theft. Our experience has shown that a thief, with access to no more than an
individual's Social Security number, can obtain a driver's license, open a new credit account, apply
for a loan, and/or obtain a copy of the victim's credit report.
The frauds are often made easier due to the willingness of banks and credit card companies to change
an address without independent verification. The circumstances we have described illustrate just how
easy it now is to assume the identity of another for fraudulent purposes. Still another online resource
for thieves in the form of electronic case files could only add to the ever-growing number of victims
of identity theft.
Potential for Other Frauds
Instant access to highly personal information such as that contained in many court files leaves
parties, witnesses, and victims vulnerable to an array of frauds. There is an almost certain prospect
that easy online access to personal information will prove a bonanza for not only identity thieves,
but predatory businesses such as unscrupulous telemarketers. For example, a plaintiff in a civil action
who receives a large award of damages may be an easy target for fraudulent investment scams.
A bankruptcy petitioner or others shown in court files to be heavily in debt with poor credit ratings
would be prime targets for fraudulent credit repair services. Other scams directed solely at those in
desperate financial straits include the foreclosure scam, described in all its variations by the U.S.
Government's Bankruptcy Foreclosure Scam Task Force www.usdoj.gov/ust/fs03.htm. Such scams
victimize not only the debtor but the bankruptcy courts as well by clogging the system with
fraudulent filings.
3. Unregulated Online Information Brokers
The sale of personal information in the form of "credit headers," direct marketing lists and public
records has long been big business. The widespread use of the Internet has meant that virtually
anyone can anonymously obtain the most personal details of an individual's life without limitation
on how the information is used.
As the Conference is no doubt aware, personal information from public court files is already
available online from companies that specialize in selling lists and individual personal information
derived from public court records.
One such company, National Bankruptcy Information, www.bkauthority.com , claims to be able to
find "any document with the original case file" which it then "compiles [into] one large database."
Two other companies also offer, again to anyone, lists of people who have filed for personal
bankruptcy. One of these companies, International Technologies, Inc. (www.inft.net ) claims its
"Financial Hardships" database is "an excellent source for marketing leads."
A third company, Discreet Research, Inc., www.discreetresearch.com , as well as International
Technologies, Inc., offers a number of items of personal information about bankruptcy petitioners,
including Social Security number.
There are many more such companies, and ease of access through online availability of entire court
files will surely increase the number of companies profiting from the sale of personal financial and
other information. Personal information is often used to create profiles of individuals and the more
information that is added to an individual's profile, the more that individual is pigeon-holed into a
particular demographic – rightly or wrongly. Information from electronic court case files will be one
more data-point.
Compounding the problem is that data collectors often view consumer data as their own -- and treat
it accordingly. Access to information in profiles then becomes an issue. For example, during the
discussions at the Federal Trade Commission's Advisory Committee on Online Access and Security,
many of the marketers present felt that it was proper to limit access to consumer information by
consumers. In fact, the most restrictive view of the panel would only allow access to personal
information collected if the record itself could be changed. (www.ftc.gov/acoas.html )
Privacy issues regarding public records become magnified as more and more personally identifiable
data are made available on the Internet because the availability of such data allows for more
extensive profiling of individuals. Profiling allows corporations to create detailed dossiers about
individuals, which can lead to creation of markets for secondary uses of that information that the
consumer could never have imagined. Few consumers realize the long-term privacy implications
of these profiling practices.
Companies have been constructing very detailed profiles about their customers, storing the
information they collect in databases where the information can be analyzed and merged with other
databases. Information from court files would be just one other category of information to be used
in this way.
We are concerned that sharing and selling of personal information, including the additional data
elements needed for the administration of court proceedings and any resulting profiles based on that
information, can have detrimental effects regarding activities that we take for granted in a free
society, particularly in the area of free expression. Up until recently, we have had the freedom and
ability to read and seek out information without being constantly monitored and identified. Now,
pieces of information that had little meaning when viewed separately are being aggregated, resulting
in extensive profiling of individuals.
For example, the merger of companies Doubleclick and Abacus has given the new single company
the ability to merge the online advertising database of one company with the offline direct marketing
database of the other, thus combining the offline and online behaviors of consumers into one
database. The profiles created from information in the new database, including public records, show
a much more detailed view of individual consumer behavior than either of the separate databases
could have shown alone.
Adding the personal information found in the public records from court actions, including bank
balances, income, and a detailed listing of assets, will only exacerbate the situation. Once consumers
become informed of the extensive abilities of corporations to gather and profile consumers' online
habits, including records that indicate their level of "financial health," consumers may be less likely
to visit particular web sites, engage in e-commerce, or post to news groups, particularly if there are
negative consequences, such as a potential employer gaining access to that profile and making hiring
or firing decisions based on the contents. Even more troubling is the very real likelihood that
individuals will seek not to participate in legal proceedings (civil actions) because the full court
record will eventually be available via the Internet.
The dangers of profiling are well expressed by Jeffrey Rosen, professor of law at George Washington
University and author of The Unwanted Gaze: the Destruction of Privacy in America (Random
House, 2000, p. 115):
Privacy … protects us from being objectified and simplified and judged out of context in a world of
short attention spans, a world in which part of our identity can be mistaken for the whole of our
identity.
The Judicial Conference of the United States cites several cases that illustrate that the right to access
is not absolute. In United States Department of Justice v. Reporters Committee for Freedom of the
Press, 489 U.S. 749 (1989), the Conference notes that the public interest is defined in Reporters as
"shedding light on the conduct of any government agency or official". Id. at 773. The public interest
does not include "the right" to acquire information about a particular citizen.
As described above, that is exactly what is occurring right now – companies are acquiring vast
amounts of personal, although currently public, information about specific individuals and using that
information to market to them. Information brokers use that information for tracking, and identity
thieves use it to commit fraud. When weighing the balance between access and privacy of parties
and third parties, the concerns discussed above should be taken into account.
Easing the administration of federal court cases may necessitate the creation of a new database
containing the data elements necessary for the administration of those cases. The resulting databases
will necessarily contain sensitive personal information about individuals that go through a civil,
criminal or bankruptcy proceeding. The information kept in the database would include both public
and non-public information including bank accounts, credit card account numbers, Social Security
numbers, and tax records.
There are some privacy protections associated with information contained in some databases, such
as with credit reporting records, but they are generally weak. Without proper safeguards and
enforcement, information collected for the ease of administration is also likely to find its way into
corporate and information broker databases resulting in unintended uses of the information without
the knowledge or consent of the individual.
The general information at the beginning of the Federal Register notice seeking comment on
electronic access to bankruptcy files states that "In addition, some trustees and creditors are
considering compiling information contained in bankruptcy records electronically for easier
administration of bankruptcy issues in which they have a claim. They may also envision some
possible commercial use." Are bankruptcy records public records? Yes, but commercial use of that
information is not what was envisioned as a protection of the public interest.
Inequitable Privacy Protections for Parties and Witnesses
Unrestricted Internet access to entire case files also may mean that parties and witnesses to a court
proceeding lose important privacy protections that in other situations are accorded by the executive
branch of government. For example, tax returns are closely guarded by the Internal Revenue Service
to such an extent that only agency employees who have a need to know are granted access to tax
information. Personal information contained in personnel and similar files as well as records of a
civil or criminal investigation by an executive branch agency would also be protected as an
exemption to the disclosure provisions of the Freedom of Information Act (FOIA). Individuals
should not have to surrender privacy rights simply by being, often unwillingly, a party or witnesses
to a court proceeding.
We recognize that the judicial branch is not subject to the FOIA or the Privacy Act. However,
individuals should not have to give up all rights to privacy because they become a party or witness
in a court proceeding.
One other security issue that needs to be addressed with the PACER system is the need to encrypt
documents along the way from sender to receiver. Each time a request is made from a web site for
a page, or each time an email is sent from one computer to another, copies are made. This is
because messages are broken up and sent along the most efficient path (even though it may be a very
circuitous route), and then reassembled at the end, the recipient's computer. Anyone along the way
can see this data. Encrypting the documents is the best way to ensure that only the intended
recipients will see the documents.
Policy Alternatives on Electronic Public Access to Federal Court Case Files
Civil Case Files
The PRC and EFF believe that adoption of a combination of alternative 2 and alternative 3 may be
the best route toward protecting privacy online although such adoption should require further study.
PRC believes the Conference should specify certain kinds of information (rather than entire
documents) that will always be excluded from the public file. In our opinion, there can never be an
overriding public interest in disclosure of personal information such as an individual's Social
Security number. Nor should personal financial information such as account and access numbers,
income, debt level, investments and retirement fund balances or detailed medical information be
included in the public file.
PRC recognizes the difficulty in identifying every item of information that should be excluded from
the public record. Many, such as those we have mentioned, are obvious, while the privacy and
security interests in other information may vary depending on the circumstances involved. PRC
would, therefore, recommend that the Committee define certain information as always excluded, but
also leave discretion to the trial court to make additional exclusions if circumstances warrant.
EFF notes all of the above, but believes that before we can give unqualified support to one
alternative or another, First Amendment concerns still need to be factored in.
PRC also supports the concept of "levels of access" to certain electronic case files, particularly while
the litigation is ongoing. As the Conference notes, the public access tradition could be maintained
under this alternative by having case files available at the courthouse. These should exclude, of
course, very sensitive information such as Social Security numbers which we urge the Committee
to define as always excluded from the public record.
The PRC recommends that a "levels of access" approach could work as follows: An abstract of the
key elements of the case would be available electronically. These would include defendant's and
plaintiff's names, the nature of the case, court information, pertinent dates, case status, and so on.
The full text of the case would be publicly available at the courthouse, with sensitive personal
information such as SSNs redacted as we've discussed above. The complete unredacted case files
would be available electronically only to those with a direct stakeholder interest in the case such as
attorneys, court administrative personnel, and parties.
Applying a combination of alternatives 2 and 3, information brokers and investigators could still visit
the courthouse to accumulate data about recent cases, the parties, and the issues without gaining
access to personal data such as Social Security numbers. PRC does not believe alternative 3 alone,
as proposed, would provide adequate security and privacy protections. If highly sensitive information
such as Social Security numbers is still kept in the public record at the courthouse, the threats to
privacy may be less but not eliminated. Information brokers may still gather sensitive information
to create databases to sell to others.
PRC strongly urges the Committee not to adopt a procedure that would treat electronic and
courthouse access equally (alternative 1). Unlimited Internet access would be a windfall for identity
thieves and scam artists who often prey on the elderly, unsophisticated, and economically troubled.
Unlike the online information broker, most identity thieves and scam artists are unlikely to take the
time and effort to go to the courthouse to gather information needed to commit their crimes.
As with the "levels of access" question, EFF believes that before we could give unqualified support
to any of the alternatives, examination of First Amendment issues still need to be addressed. EFF
hopes that the Committee will hold hearings on this subject.
PRC does not believe reliance upon protective orders alone will protect personal privacy and limit
access to sensitive information. Such a procedure might work quite well in the context of litigation
involving corporations seeking, for example, to protect trade secrets or other intellectual property.
However, individual litigants who often rely on less experienced counsel as well as pro se litigants
are less likely to file a motion for a protective order. Furthermore, an attempt to accomplish
safeguards of privacy and security interests through protective orders would unduly burden the
parties and the courts to such an extent that such protections could take a back seat to other issues
presented by the case.
For those interested in access to public court records for research purposes, published court opinions
now and always have been the best source of information about a case. Most opinions include a
summary of relevant facts, the arguments put forth by the parties, relevant law and the court's
reasoning and conclusions. Thus, information about the most important aspects of a case is already
available from a variety of sources. And, of course, there will always be public access to proceedings
as long as anyone can walk into a courtroom as a spectator.
If necessary, the Committee should also seek amendments to the Federal Rules of Civil Procedure
to account for privacy and security interests.
2. Criminal Case Files
The PRC supports alternative number 1 with regard to criminal case files, that is do not provide
electronic public access to full text criminal case files. We agree with the reasoning behind
alternative number 1, in particular the threat of harassment of codefendants and obstacles to law
enforcement and prosecution efforts. We note, in addition, the threat of harassment or even violence
directed at witnesses and victims may make individuals with very important information to convey
reluctant to voluntarily come before the court.
3. Bankruptcy Case Files
The PRC and the Electronic Frontier Foundation provided comments to the survey conducted by the
Department of Justice, Department of the Treasury, and the Office of Management and Budget in
September, 2000 with regard to electronic access to bankruptcy case files. See
www.privacyrights.org/ar/bankruptcy091800.htm
In summary, we believe the same threats to privacy and potential for illegitimate use of personal
information applies to bankruptcy case files as well as civil and criminal case files
Appellate Cases
We believe the same access rules should apply to appellate case files and trial court files.
5. Fees
Although comments were not requested on the question of fees for access, we think that the
Conference should consider dropping the public access charge of $.07 for downloading and printing,
or at least consider further study on the issue. The main reason for the adoption of fees was so that
the agency providing access to the requested documents could recover photocopying costs and
administrative costs such as locating the file, physically photocopying the document and then
re-filing the document back in its proper place.
With electronic records there is minimal cost to the agency. In this case it would be the one-time
start up cost of the PACER system. After that, the costs fall solely onto the individual requesting
the records with no cost to the agency. The individual requests the document from his/her computer,
takes the time to download it, and then prints it using his/her own printer. We believe that the fee
provision should be rescinded.
The PRC and EFF appreciate the opportunity to comment on some of the questions raised by the
Conference.
No. 223
1/26/01
Anchorage, AK
Available to the public BUT ALL PERSONAL INFORMATION SUCH AS SOCIAL SECURITY
NUMBERS, PHONE NUMBERS AND ADDRESSES SHOULD BE REMOVED BEFORE THEY
ARE MADE ACCESSIBLE VIA THE INTERNET. Unless those elements are removed, the
individual's privacy as far as I'm concerned has been violated!
I urge you to consider this before making any court documents available to the general public.
Thank you for taking public comment.
No. 224
1/26/01
Lowell, IN
I don't feel that court decisions that are known to be available to the public, should be available (in
detail) on the internet. The only information that the public should be able to access is the filing
name and chapter filed of the petitioner. Any other information will be at the use of less than
honorable means by individuals seeking to use the finer details of otherwise personal and private
information, to advance there criminal cause. The use of SSNs, house address's, full names, can be
obtained to illegally get credit cards or use someone else's identity. Petitioners would fall prey to
all kinds of fraudulent acts, and so would there household (children) members as well. It would take
two seconds for convicts (current or wannabe) to see where there next opportunity lays. And it
would be on a silver platter on the internet.
No. 225
1/26/01
Stuart K. Pratt
VP, Government Relations
Associated Credit Bureaus, Inc.
On behalf of the members of Associated Credit Bureaus, Inc. we offer the following comments on
the necessity of having access to public records administered by the United States Courts.
The preponderance of our members are in some way considered a consumer reporting agency under
the federal Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) and as such they produce a range of
consumer-information-based products which result in many societal benefits including banking
safety and soundness, work place safety, fraud prevention and more. Public records often play a vital
role in the production of these consumer information products. Consider the following examples
of the uses of various types of public records discussed in your notice and their relative importance
to our industry.
Employment Screening
In a recent study of 1500 pre-employment background checks 32 percent of the candidates failed to
disclose important facts relevant to the employment decision including:
Serving 20 years of probation and paying restitution for grand theft.
Being convicted, twice, of robbery with a deadly weapon.
Multiple arrests for aggravated assault, terrorist threats, and unlawful possession of a weapon.
Being convicted 13 times of passing bad checks.
Serving 6 months in jail and threat years for carrying a concealed weapon.
Our members who produce employment screening reports must continue to have electronic access
to these data in order to ensure that employers are fully informed where they have a duties to, for
example, prevent pedophiles from working in close proximity with children, or violent criminals end
up being hired as home healthcare providers. Such uses of criminal history data are not limited to
merely the private sector. Federal Aviation Administration regulations and those of the Department
of Defense, for example, require criminal background checks for various personnel and these are
often conducted by outside screening agencies such as those in our Association's membership. The
societal benefit of ensuring complete public record information is available for employers and used
in the context of current labor law is a clear benefit to society and must be preserved.
Safety and Soundness of Credit Decisions
Our members also produce 900 million consumer credit reports each year, which are governed under
the strict requirements of the FCRA. Contained in these reports are public record information on
tax liens, bankruptcies, and judgments. Each of these data provides essential information for
ensuring the safety and soundness of credit decisions made by U.S. lenders of all types. To
illustrated this example, in a study of 900,000 consumer reports, it was determined that a consumer
with no adverse or derogatory information in his/her file had only a one in 14.5 chance of going
delinquent on a loan. However, where there was the presence of a unpaid tax lien the likelihood of
a delinquency changed dramatically .75 in one chance. This example speaks for itself, but to amplify
on this point, in 1999 the Office of the Comptroller of the Currency raised serious concerns about
any reduction in the information reported to consumer reporting agencies which would result in a
reduction in the ability of its regulated lenders to make the highest quality lending decisions possible.
We need only remember the savings and loan crisis of this past decade to realize the economic
consequences of reducing essential information needed for lending decisions. Said differently,
eliminating our members' access, electronic or otherwise, to full and complete public record
information on bankruptcies, tax liens or judgments would be harmful to every lender in this country.
Complete Identifying Information
Above we have provided several examples of the types of pubic records to which our members must
have access and the societal benefits of ensuring this continues. These records are ultimately only
of value where we also have access to complete identifying information in order to accomplish our
duty under the FCRA of "…maintaining reasonable procedures to ensure the maximum possible
accuracy of the information concerning the individual about whom the report relates..." Consider
the following facts about our highly mobile society and thus the need for access to all identifying
information in a given public record:
According to the U.S. Census, over 16 percent of our citizens move each year. The U.S. Postal
Service likewise estimates that it receives 42 million change-of-address requests each year.
There are approximately 3 million marriages and divorces each year leading to a similar number of
last names which change.
Our members must have full access to name, address and social security numbers when available in
public records to ensure compliance with federal law and assure consumers that our information
systems are accurate and fair. The social security number is the most stable identifying element in
most public records and for our purposes, it should remain available for data base accuracy and
accurate data retrieval.
Summary
In summary, an over-reaching decision to close down access to public records via electronic means
or otherwise, or even access to identifying information, can have serious unintended consequences
for our society. These records were created to inform society in general about certain facts that
should be available to others. In fact the very premise of open records, which as you point out in
your notice, "… is rooted in both constitutional and common law principles…", is, in our opinion,
coterminous with the health of our Democracy. No governmental agency should be empowered to
gather information on its citizens and prevent access to the same.
We appreciate this opportunity to comment.
No. 226
1/26/01
Robert F. McKew
VP, General Counsel
American Financial Services Corporation
The American Financial Services Association ("AFSA") appreciates this opportunity to respond to
the Judicial Conference's request for comment on the privacy and security issues raised by electronic
access to federal court records. While as citizens we are broadly interested in the impact of internet
access to criminal and civil court records, the professional expertise of AFSA and its members is
limited to the privacy issues raised by electronic access to bankruptcy court records. Our remarks in
this letter are restricted to that topic.
AFSA and its members have long recognized that bankruptcy increases credit prices. Unrecoverable
principal and interest is one reason, but equally significant are the costs for creditors to monitor and
participate in bankruptcy proceedings and maintain programs to assure compliance with restrictions
like the automatic stay, turnover, redemption, cramdown, and the post-discharge injunction. The
recent increase in bankruptcy filings has caused these monitoring, participation and compliance costs
to increase dramatically. For this reason, AFSA supports efficient and low-cost access to accurate
and complete information about (1) who has filed bankruptcy, (2) their financial information, and
(3) the trustee's administration of the case. Internet access to bankruptcy data has enormously
improved efficiency over what was the case just five years ago.
The amount and nature of information a debtor filing for bankruptcy protection provides has not
significantly changed for many years. However, in the last five years there have been significant
increases in the efficiency with which information about bankruptcy cases is made available. There
have been three main official initiatives. First, most courts, through PACER or otherwise, make the
docket of cases available on line. Second, a few courts have initiated electronic programs under
which the petition, schedules, and other docket items are available on line and these initiatives are
continuing. Finally, the Chapter 13 trustees have initiated programs under which their case
administration information is or will be available on line. Because of the need for bankruptcy
information, private information retrieval companies have filled in the gaps, developing on-line or
telephone availability of bankruptcy information on a fee-for-service basis. All together, these
changes have begun to increase the efficiency with which information about bankruptcy proceedings
is available, and if allowed to continue, should result in significant improvements in the ability of
those parties/creditors affected by bankruptcy proceedings to obtain the information they need in
order to comply with its restrictions and participate effectively in cases.
However, there are those who criticize these developments, and raise concerns about their impact
upon debtor privacy. A vocal group of critics has urged restrictions on the way personal and
financial information is collected and made available in bankruptcy proceedings, with different levels
of concern for the social security number, addresses, credit account numbers, income and expense
figures, and assets and liabilities. A few have even gone so far as to suggest that information
provided in adversary or contested matters be subjected to restrictions.
Discussion
In bankruptcy, the federal government removes from creditors the right to enforce obligations the
debtor owes them, and prefers certain creditors over others. As a result, wealth is transferred from
creditors to debtors and among creditors without compensating those who lose out , presumably to
accomplish certain social goals.
Historically, it has been accepted that in exchange for the wealth transfers the federal government
mandates on their behalf, debtors are responsible to disclose fully to creditors and the public their
complete affairs, including their assets and liabilities, their creditors and other obligees, their income
and living expenses, and their financial transactions during the period before bankruptcy. The
purpose of the disclosure is threefold:
· To permit creditors and other interested parties whose obligations may be adversely affected to
protect their interests and participate effectively.
· To encourage creditors, other interested parties and the public to detect improper or fraudulent use
of bankruptcy. Because it can so significantly reduce a debtor's legal obligations, bankruptcy
provides the opportunity for the unscrupulous debtor to misuse the process. Over the years, scrutiny
by creditors and the public has been relied upon to deter and detect improper use and fraud, rather
than a much more expensive governmental enforcement system.
· To assure public oversight and confidence in the bankruptcy system, which, if it operated in secret,
might well appear arbitrary and corrupt.
Thus, it has been a fundamental principle of bankruptcy administration that information a debtor
provides in the course of a bankruptcy proceeding must be freely available to creditors, other
involved parties, and the public to support the proper functioning of the bankruptcy system and to
assure public support for the extraordinary remedies bankruptcy provides. That fundamental
principle is recognized in section 107 of the Bankruptcy Code, which requires open access to any
papers filed with the court, subject to, upon specific request of the debtor, certain listed exceptions
covering confidential business information and scandalous matter. The right of access to bankruptcy
information is also recognized in the Bankruptcy Rules. Thus any change to the public availability
of court records would, at a minimum, require statutory and Rule changes, as well as satisfaction of
constitutional requirements.
By practice, trustees have made information they collect available to those who inquire, recognizing
the open and public nature of a bankruptcy proceeding and their fiduciary duties. Changing the
trustees' practices would likewise require statutory change.
At its core, the underlying issue is whether open public access to the records of bankruptcies is
outweighed by the private nature of the information recorded in those records. AFSA's members are
concerned about the protection of confidential financial information, both from the perspective of
their customers and since they must bear the cost of any fraudulent misuse of such information.
However, practical means to accommodate both those concerns and the needs of the bankruptcy
system are not available. Critics of the present system have suggested changes such as no longer
requiring certain information like the social security number or credit account numbers, restricting
availability of sensitive information only to identified "creditors" or "parties in interest" and
excluding the public, or limiting or discouraging the availability of bankruptcy information over the
internet. As explained below, any of these restrictions on open public access to bankruptcy court and
trustee records would adversely affect the system's ability to provide --
· debtor benefits such as the automatic stay and post-discharge injunction;
· adequate information so that those affected by bankruptcy can comply with its restrictions and
protect their financial and property interests; and
· assurance to the general public that the bankruptcy system, with its unique legal rules and relatively
wholesale forgiveness of debt, is operating fairly and deserves continued support.
In addition, the requirements of the United States Constitution significantly limit any attempt to
make bankruptcy information inaccessible to creditors, other affected parties or the public; or to
require creditors and others to comply with restrictions, such as the automatic stay and
post-discharge injunction, without giving them adequate information from court and trustee records
needed to protect their interests and comply with the restrictions.
Other, less restrictive means of regulation, such as disclosing to debtors that information they
provide on the petition is publicly available, may be beneficial. However, the cost of effecting and
administering the disclosure should be weighed against the fact that most if not all debtors
understand that the information they put in papers filed with a court of law are public.
Thus, on balance, no new regulation restricting access appears to be appropriate in light of the
substantial benefits debtors receive from bankruptcy and the needs of the bankruptcy system, those
affected by it, and the public for access to the information the debtor provides.
The discussion below first addresses the four specific questions the request for comment raises about
access to bankruptcy case files. It then proceeds to address general constitutional and policy
considerations which preclude the imposition of significant limitations on access to bankruptcy
information. Finally, it turns more specifically to the debtor's social security number, other
information the debtor provides that is placed in the court record, information the trustee obtains or
develops during administration of the case, and certain other considerations.
I. The Four Specific Questions Raised About Bankruptcy Case Files
A. Amending Section 107 of the Bankruptcy Code
For reasons that are discussed more fully below, an amendment to section 107 of the Bankruptcy
Code to specify that only "parties in interest" may obtain access to certain types of information in
bankruptcy case files is not justified. First, the unusual nature of bankruptcy proceedings requires
that they be open to public scrutiny by the press and others both to better detect fraud and to provide
independent oversight of a process that is easily abused. Restricting access only to "parties in
interest" would preclude such oversight by the press and others. Nor does it seem entirely
appropriate for the federal judiciary to advocate a policy that would preclude oversight of how well
it is carrying out an important social function, redistributing wealth as part of dealing with those
burdened with debt.
Second, a restriction of information only to "parties in interest" is far too narrow. Such a restriction
would bar bankruptcy information retrieval services and credit reporting bureaus from obtaining
critical information, even as the judiciary would make it more difficult for those affected by
bankruptcy to obtain electronic information directly. Equally importantly, such restrictions would
preclude important academic, credit industry, debtor group and think tank research into what occurs
in bankruptcy. How the bankruptcy system operates today is only superficially understood. What
does seem apparent is that how it affects debtors, creditors and the society in general changes as
economic and social conditions change. Yet bankruptcy policy cannot be developed against this
changing backdrop unless there is continuing research. Moreover, the credit industry is constantly
reviewing its underwriting techniques, and bankruptcy information is an important part of that
review.
Third, restrictions on access to bankruptcy court records that have been traditionally part of the
public record raises issues under both the First Amendment, and in some instances, the Fifth
Amendment. The judiciary has under the common law made its records open because it has
recognized that as the third branch of government, appointed yet wielding enormous power, it has
an obligation to permit public scrutiny. To some extent these concerns have been recognized to arise
under the Constitution as well. It would seem inconsistent with the traditional role of the judiciary
for it to advocate a departure from this policy of openness, no matter how well intentioned the
concerns about privacy which would motivate doing so.
Fourth, the "gatekeeper" function that would be necessary to separate who was a "party in interest"
from who was not would require a serious governmental presence. Would the bankruptcy court
clerks perform this function? A "privacy Tsar"? Moreover, the need to clear a "gatekeeper" before
obtaining information would probably significantly reduce the efficiency of electronic information
retrieval. Listed creditors could not be the only test, because there are many who are considered
parties in interest who are not listed creditors.
Fifth, traditionally, it has been recognized that bankruptcy relief is a unique wealth redistribution
benefit, and because of the special needs for information and public oversight, debtors have had to
give up some private information in order to obtain relief. The electronic availability of information
does not change these needs nor justify new restrictions.
B. Requiring less information on petitions or schedules and statements of affairs.
The bankruptcy system requires financial and personal information to inform creditors whose debts
will be impaired or discharged about the debtor's financial affairs, permit the trustee to assure that
assets are found and collected, provide for the accurate payment of creditors, and assess whether the
debtor is entitled to the relief sought. The information which over the years has been required in the
Schedules and Statement of Affairs has proven its utility time and again. In a simple case, it is the
bare minimum that is necessary in order to fairly provide relief and assure creditors that the relief
is appropriate. In a more complicated case, it is the beginning point on which collection of
additional information by trustee and creditors is built.
The discussion below goes into how the social security number and financial information is used in
a bankruptcy proceeding. Reducing the amount collected would seriously impair the ability of
creditors, trustees, law enforcement agencies and the courts to perform their assigned functions
which include in the right circumstances checking on the accuracy of the information the debtor
provides and the appropriateness of the relief sought.
Because requiring less information would seriously impair the functioning of the bankruptcy system,
it clearly is not an appropriate policy.
C. Restrict use of Social Security, credit card, and other account numbers to only the last four
digits
As discussed at length below, the social security number is a unique identifier absolutely crucial to
the ability of creditors, trustees, law enforcement agencies and the courts to perform their functions.
The social security number, credit card and other account numbers enable creditors to identify that
a particular customer (perhaps named "Jim Smith") is the one who filed bankruptcy rather than one
of hundreds of other customers with the same or a similar name. The last four digits simply would
not perform this function.
D. Segregate certain information from the public file and restrict it only to the courts, the U.S.
Trustee, and to parties in interest.
This is a means of accomplishing the restriction of information to "parties in interest". The reason
why such restriction is inappropriate is discussed above in section A, and below.
II. General Considerations
A. The First and Fifth Amendments seriously constrain any effort to restrict who can
have access to bankruptcy court records.
It is well established that the First Amendment of the Constitution mandates that the press and public
have open access to court records, absent special compelling circumstances. Although some have
tried to argue that bankruptcy court records, or at least the petition and schedules, are not "really"
court records and therefore not afforded First Amendment protection, or otherwise tried to avoid the
force of this argument , it is unassailable that bankruptcy is a judicial proceeding and that the petition
and schedules have always been considered records of the bankruptcy court. Any effort to limit or
restrict access to these records by those affected will require legislative changes and is unlikely to
pass constitutional scrutiny under the First Amendment.
But if there were any doubt as to the First Amendment's requirements in this context, the Fifth
Amendment right to due process also mandates that at least creditors and other parties affected by
the bankruptcy process be able to access the information they need to protect their interests and
comply with bankruptcy law mandates like the automatic stay.
As stated by the Tenth Circuit Court of Appeals:
"A fundamental right guaranteed by the Constitution is the opportunity to be heard when a property
interest is at stake. Specifically, the [bankruptcy] process depends upon all creditors and interested
parties being properly notified of all vital steps in the proceeding so they may have the opportunity
to protect their interests."
In this day of vastly increased bankruptcy filings , consumer creditors of any size often receive
multiple bankruptcy notices each business day. If those notices did not identify the debtor in a way
that allowed the creditor to determine that a particular notice was for a certain customer, the creditor
would not have received effective notice since the creditor cannot determine whether its interests are
actually at stake. As a practical matter, effective notice requires that the social security number be
on the notice, as is presently the case. It also requires that affected and potentially affected parties
have access to the official court record. Often creditors and other affected parties learn of a
bankruptcy informally. They may only receive the official notice much later, or not at all. When
informally notified, they act at their peril if they do not cease collection efforts. Therefore, they
need access to the court record to verify that in fact a bankruptcy has been filed, and, today, they do
so by checking the official court record which shows the debtor's name, address and social security
number. A similar reliance on the social security number occurs when creditors first learn of the
bankruptcy from the official notice. By using the social security number and other information in
the public record, they can determine whether their customer (as distinct from others with similar
names) is the one who, in fact, has filed. It follows that access to that information is necessary for
effective notice, and constitutionally required as a matter of due process.
By extension, if a creditor received notice, but could not gain access to the information in court
records which allowed it to understand how the bankruptcy was likely to affect its rights and evaluate
how it might effectively protect them, due process would not be satisfied because the creditor would
not have had a real opportunity to prepare and present its case.
Given the limitations imposed by the First and Fifth Amendments, imposition of restrictions on open
public access to bankruptcy court records is not, as a practical matter, an achievable outcome,
assuming it were desirable. But even if the Constitution did not impose these restrictions, in a
democratic society relying, as does ours, on checks and balances to constrain governmental power,
such restrictions would not be desirable.
It has long been established as a basic principle of fairness and a check on the judicial system that
records of court proceedings must be on the public record. Governmental agencies often seek to be
free from public scrutiny. However, our history teaches that when justice is administered and
information relevant to the relief sought is kept secret, arbitrariness, injustice and abuse can result.
On the other hand, public inquiry and criticism aid development of efficient and effective
governmental programs. Similarly, injustice results when parties affected by a judicial proceeding
cannot secure the information they need to fully represent themselves. These concerns, while usually
clothed in the language of First and Fifth Amendment analysis, have behind them long-standing
policies on which our democratic society has been based since its inception. It would be unwise to
abandon them.
B. The bankruptcy system is built upon the assumption of open access to bankruptcy records,
whether of the court or the trustee. Without such access, the bankruptcy system would not operate
as intended.
Bankruptcy has long relied upon the adversarial nature of the judicial process and the scrutiny of the
public to control and regulate compliance with restrictions on bankruptcy relief. Without open
access to the information the debtor provides, that function would be substantially impaired,
negatively impacting the controls on which the bankruptcy system primarily relies to assure the
integrity of the system. Significant and costly changes would have to be made to the bankruptcy
system to assure its integrity, such as substituting a large bureaucratic oversight and monitoring
presence in the bankruptcy process. Such a presence would be both intrusive to debtors and
expensive. As a practical matter, Congress has always been reluctant to fund any such presence.
Yet reductions in public and creditor access to bankruptcy information without a significant and
effective increase in public enforcement and oversight would further erode confidence in the
bankruptcy system.
Moreover, for many years, the bankruptcy system has assumed that creditors and other affected
parties could protect their interests adequately during a bankruptcy, because they had complete
access to the information the court and trustee had concerning the case. Restrictions on interested
party access to information would seriously undercut that assumption, and require massive changes
to the bankruptcy system in order to assure fair treatment of those adversely affected.
III. The Social Security Number
Critics of the present availability of bankruptcy information have focused much of their concern
upon the social security number. Some have suggested that the social security number no longer
be required, while others have urged, variously that the number be available only to: (1) the trustee,
United States Trustee ("UST") or bankruptcy administrator ("BA"); (2) to "creditors"; or (3) to
"creditors" and "parties in interest." To avoid the First Amendment constraints, one commentator
has even urged that the social security number be removed from the judicial record and held only by
the UST, BA or trustee.
However, abandoning use of the social security number as a means of identifying the debtor or
limiting access to it would seriously impair the bankruptcy system, debtor relief, and public
oversight.
A. The bankruptcy system cannot function as intended unless the social security number
continues to be required.
The social security number is the only available unique identifier of individuals maintained in the
United States. It is universally used by the government and by the rest of society to identify a
particular individual for a whole series of purposes. It is the only generally recognized way to
unequivocally identify a particular individual as one who has sought or received bankruptcy relief
from the federal government.
At the outset, it is clear that important controls and limitations on bankruptcy relief would become,
in effect, unenforceable if the social security number were no longer required and retained in the
court records of the bankruptcy case. The bankruptcy system relies upon trustees, USTs, BAs,
creditors and other parties affected by bankruptcy to enforce the limitations and restrictions on relief
incorporated into it. Restrictions on filing frequency are a major limitation designed to control abuse
of the system and the generous relief it offers. Yet trustees and other officials, creditors and other
affected parties could not find and raise cases of multiple and serial filing, or repeat chapter 7 filings
within the 6 year period of limitation, unless the social security number used in prior bankruptcies
was available. Furthermore, since trustee records are not generally available for long after the final
report is filed with the court, having the social security number available only there would effectively
negate enforcement of the 6 year limitation on repeat chapter 7 cases. Moreover, the present
bankruptcy system funds neither the UST, BA nor trustee adequately to make vigorous enforcement
likely. Instead, it relies heavily upon enforcement by creditors and other interested parties, who
would be effectively cut out if they could not obtain access to the social security number.
Without access to the social security number, detection and proof of a multiple, serial or repeat filing
case is extremely difficult. Debtors can simply deny that they are the person who previously filed,
requiring eyewitnesses (usually unavailable) to identify the debtor, or other testimony based on
personal identification that this debtor was in fact the very same person who previously filed. Even
if such eyewitness testimony were available, preparation and trial time would increase inordinately,
seriously impairing enforcement. In some of the configurations in which multiple and serial filing
is practiced, a creditor in a subsequent bankruptcy may not have been even a party in interest in an
earlier bankruptcy. Restricting access only to "parties in interest" would in such situations preclude
detection and/or enforcement by those who were creditors in the later case, but not in the earlier
cases.
B. Unless creditors and other affected parties have open access to the social security number,
such remedies as the automatic stay and post-discharge injunction will not be effective, and creditors
will be unable to comply with the restrictions and controls of the Bankruptcy Code.
One of the most important and expensive functions creditors perform in trying to comply with
bankruptcy law is identifying a particular customer as one who has in fact filed bankruptcy. Name,
address and financial information alone are not sufficient. Common surnames and debtor name
changes are frequent and street addresses given on the petition often do not agree with those on
creditor records. Even when they do agree, they are not reliable, since a child may have the same
name as a parent or cousin, and in some areas of dense living conditions and high turnover,
occupancy of the same or an adjacent apartment by unrelated people with similar names can occur.
The listing on account records of a creditor's account number and dollar amount is not a reliable
method of identification, since creditors often extend credit to those with similar names, and debtors'
listing of amounts owed is often inaccurate.
The present bankruptcy system places a high premium on absolutely accurate identification of a
particular debtor as one who has filed bankruptcy to protect the debtor, to permit the creditor to
comply with bankruptcy restrictions on its conduct, and to allow the efficient and fair evaluation of
credit worthiness. For example, a creditor's or credit bureau's incorrect conclusion that the debtor
has filed for bankruptcy can result in denial of credit or termination of credit services. The creditor
that incorrectly concludes a person has filed for bankruptcy also will incorrectly cease attempts to
collect, adversely affecting the creditor's business. If, on the other hand, the creditor incorrectly
concludes that a debtor is not in bankruptcy, collection will continue despite the automatic stay,
harming the debtor and placing the creditor unnecessarily at risk for sanctions under section 362(h)
for willfully violating the stay. The accurate identification of co-debtors protected by the co-debtor
stay is also central to the protections the Bankruptcy Code is intended to provide.
If restrictions were imposed precluding some or all entities potentially affected by bankruptcy from
access to the social security number, fairness as well as constitutional law would require that those
entities be relieved from responsibility for complying with the automatic stay, turnover
responsibilities and the discharge whenever they were unable to identify accurately their customer
to a high degree of certainty as one who had filed for bankruptcy. Such a change would clearly
reduce the value of the automatic stay, the discharge, and bankruptcy relief in general.
C. The credit system cannot function unless credit bureaus and other record retrieval agencies
have access to the social security number.
The efficient allocation of consumer credit, and its quick and widespread availability to every
segment of society have long been goals fostered by Congress. Credit bureaus are recognized as the
facilitators of efficient credit granting, and it is clearly a Congressional goal that the information they
report be accurate. Whether an individual has filed for bankruptcy is clearly relevant to efficient
granting of credit to consumers, and credit bureaus have long retrieved this information and reported
it in the credit report.
In obtaining accurate information about debtors, credit bureaus rely primarily upon the debtor's social
security number as the crucial identifier. It is obviously of the highest importance that credit bureaus
obtain accurate information of this nature. It follows that they must have open access to the debtor's
social security number.
D. Public record retrieval intermediaries and servicing and collection agents all must have access
to the social security number if the credit underwriting and collections systems are to work
efficiently.
Public record retrieval intermediaries such as bankruptcy information providers must be able to use
the social security number to accurately relate a bankruptcy filing to a particular person. The
information they obtain is relied upon by creditors and other participants interested in the bankruptcy
process, and the availability of information from them increases the efficiency with which creditors
can manage a growing number of bankruptcy cases. Information from these sources is particularly
important to smaller creditors who cannot support a large bankruptcy management department.
Similar ly, agents of the creditor such as servicers and collection agents add significantly to
the
efficiency of loan administration, lowering creditor costs and credit prices. These parties require
access to the social security number to effectively administer cases. They, like creditors, require
accurate identification of an individual who has filed for bankruptcy or is otherwise protected (for
example, a co-signer in a Chapter 13 case) in order to comply with such restrictions as the automatic
stay and post-discharge injunction. Precluding them from access would clearly be counterproductive
to the goals of the Bankruptcy Code.
E.Access to the social security number could not be restricted just to "creditors" and "parties in
interest" without seriously impairing the fairness of the bankruptcy system, and the effectiveness of
debtor remedies.
Some have proposed that access to sensitive information like the social security number be
controlled by a "gatekeeper" who would check that the person requesting the information had a
legitimate interest. However, any "gatekeeper" must be given explicit criteria to separate those that
have a legitimate interest from those that do not. Such a standard is not available as a practical
matter. The "creditor" and "party in interest" categories are neither unambiguous nor sufficiently
inclusive of those potentially affected by bankruptcy.
A debtor's bankruptcy proceeding extensively changes the rights and obligations of the debtor and
those with whom the debtor has relationships concerning financial, contractual, property ownership,
governmental and sometimes marital and family matters. Parties who are not considered "creditors"
(and may not even be "parties in interest" ) are often affected, such as holders of executory contracts,
custodians of property (subject to turnover obligations), tax collectors, enforcement agencies,
potential new creditors, children not in the debtor's custody and ex-spouses to whom no money is
currently owed, and so on. Sometimes such information is legitimately sought by those parties that
for strategic reasons do not want to participate in the bankruptcy proceeding and, therefore, do not
want to identify themselves as creditors or potential creditors.
For practical reasons, therefore, the "gatekeeper" approach is unworkable.
F. The general public must have access to the social security number in order to assure that
accurate information about the bankruptcy system will be available.
1. In General.
Given bankruptcy's extraordinary effect upon a debtor's obligations, the public is legitimately
interested in whether individuals have filed for bankruptcy. For example, recent public interest has
been focused on individuals charged with securities fraud who harmed innocent investors and then
filed for bankruptcy, as well as businessmen who have used bankruptcy following business reverses
while exempting a valuable house and grounds. Reports of these cases have raised questions in the
press about whether bankruptcy relief was appropriately or fairly available. Without public access
to the information filed and the ability to identify the filer as the person who was charged with fraud,
reporting on these cases would be chilled. In addition, imagine the impact on public confidence in
the bankruptcy system if such stories were reported only as rumors, with the comment that
bankruptcy processes were secret and whether the alleged perpetrator of fraud had obtained
bankruptcy protection could not be verified.
2. Research by Academics, Debtor and Creditor Groups, and Think Tanks.
Over the years, bankruptcy policy has been importantly influenced by empirical research studies that
have examined bankruptcy court records to understand the social impact bankruptcy has on debtors,
on creditors and on the society as a whole. While empirical research aimed at the federal judicial
system is in general beneficial, the need for careful and professional research is magnified in
bankruptcy. Bankruptcy is a governmental program which significantly redistributes wealth, yet its
operation and effect is little understood, and we believe constantly changes depending upon
economic and social conditions. Research by any citizen, regardless of political orientation or policy
bias, is critical to oversight of this important governmental function.
Yet restrictions on access to bankruptcy court records urged by privacy advocates would leave no
room for this type of research. Developing exceptions to a general rule which precluded the public
from access to bankruptcy file information would involve the judiciary in decisions that required
difficult line drawing. Which academic or consumer credit industry study was "legitimate" and
which was not? Could credit industry researchers retrieve information from case files so they could
do cross sectional research linking information in creditor loan files to information disclosed in
debtor income and expense or asset schedules? Such research might be to determine to what extent
information debtor's provide in loan applications agreed with information debtors provided the
bankruptcy court, or it could focus upon whether creditor loan application information was
sufficient. What if such information retrieval was to be used to aid creditor's better design marketing
programs, either to be more likely to exclude those at highest risk for bankruptcy, or to include
them?
Should researchers have to justify their study methodology and projected results to the federal
judiciary? Wouldn't the requirement that they do so raise issues of governmental control over the
development of ideas?
This is not to say that there may not be an appropriate way to accommodate restrictions on public
access with exceptions for empirical research that do not raise these questions. However, it does not
appear consistent with normal canons of judicial restraint for the federal judiciary to both develop
the necessary standards for a research exception, and then administer them.
IV. The Debtor's Financial Information
Critics have urged that access to some or all of this information be restricted. In particular, there has
been concern with access to credit account numbers, but there has also been expressed concern that
in the schedules the debtor must disclose assets, liabilities, income and expenses, family size, and
expenditures of a sensitive nature, such as charitable contributions. However, without access to
such information, creditors and other affected parties could not identify the accounts debtors are
discharging or how to participate in the case so as to protect their interests, nor can the public
evaluate how well bankruptcy is performing.
A. Creditors and other affected parties cannot be excluded from access to debtor financial
information.
Without access to debtor financial information, creditors and other affected parties cannot adequately
evaluate their position, either as against the debtor or in relation to other, competing creditors. They
cannot determine whether to object to exemptions, seek lift stay or a section 707(a) or (b) dismissal
motion, or in some instances even whether and how to prepare a proof of claim. In a Chapter 13
proceeding, it is almost impossible to understand a plan without access to the schedules. The
information required in the petition and schedules has been developed over the years so that creditors
can, by reviewing the schedules, fairly evaluate their position and adequately pursue their interests,
which bankruptcy has the effect of seriously impairing.
The sweeping nature of bankruptcy relief means that many people and entities are affected by it.
Unless they can obtain accurate information about the debtor's financial position, and relationships
with all of his or her creditors and other significant parties, they are precluded from effectively
protecting their economic interests and property rights.
B. Credit bureaus, public record intermediaries, servicing agents and collection agencies must
have access to this information.
Moreover, credit bureaus, public record intermediaries (such as bankruptcy information collection
agencies), and those entities which provide collection services to creditors (like servicing agents and
collection agencies) require this information to assist both those creditors whose interests or property
are involved in the bankruptcy, and those creditors who might in the future consider extending credit
or enter into other transactions with the debtor.
C. The public and press must have access to this information in order to provide oversight of the
bankruptcy process and maintain public confidence in it.
As previously discussed in connection with the social security number, bankruptcy's extraordinary
effect upon a debtor's obligations makes public scrutiny of the bankruptcy process legitimate. As
the Supreme Court stated in Cox Broadcasting,
…[I]n a society in which each individual has but limited time and resources with which to observe
at first hand the operations of his government, he relies necessarily upon the press to bring to him
in convenient form the facts of those operations. Great responsibility is accordingly placed upon the
news media to report fully and accurately the proceedings of government, and official records and
documents open to the public are the basic data of governmental operations. Without the
information provided by the press most of us…would be unable to vote intelligently or to register
opinions on the administration of government generally. With respect to judicial proceedings in
particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the
beneficial effects of public scrutiny upon the administration of justice. …The freedom of the press
to publish that information appears to us to be of critical importance to our type of government in
which the citizenry is the final judge of the proper conduct of public business.
Moreover, the need to maintain public confidence in the bankruptcy system as a practical matter
requires that bankruptcy proceedings not be carried on in secret. Public discussion of both individual
cases and the bankruptcy system in general are valuable because it builds public acceptance or
encourages improvements.
Finally, the comments in the previous Part on academic and other empirical research apply here as
well. If there is a rule restricting public access to bankruptcy file information, there must be an
exception permitting empirical research. Otherwise, it is not likely that the actual workings of the
bankruptcy system will be understood as social and economic conditions change, and policy
development as well as credit industry response to those changes will be truncated. Yet it does not
appear appropriate for the judiciary to both develop the standards for such an exception and then
apply them. The appearance would result that the judiciary was controlling the available information
about its own performance, while limiting development of information and ideas about the
bankruptcy system.
V. Trustee Information
Although in Chapter 7 no-asset cases the trustee, UST or BA often have little information, in an asset
or potential asset Chapter 7 case or Chapter 11, 12 or 13 cases, these officials often have
considerable information about the debtor's financial affairs and ability to pay, and, in the case of
Chapter 12 and 13 proceedings, plan performance. For those potentially affected by a bankruptcy,
this information is extremely valuable, for example, to assess the likelihood of a dividend being paid,
whether relief from stay should be sought and whether a Chapter 11, 12 or 13 plan should be
supported or opposed. In Chapter 12 and 13 cases, the trustee is the person usually most informed
about the debtor's plan and its performance. In particular, only that trustee has the information to
determine if the debtor is current on payments to the trustee mandated by the plan, or the amount the
trustee considers to be still owing a creditor under the plan. Chapter 13 payment tracking is a major
function of any creditor with a substantial interest under a Chapter 13 plan. When the scheduled
payments from the plan are not received, the creditor must determine whether the debtor is in default
on the payments to the trustee, the amount of the default, and if the trustee has taken steps to require
cure. This information is used to determine whether to seek relief from stay, or conversion or
dismissal. When a debtor dismisses or converts a Chapter 13 plan, or proposes a payoff, the creditor
must determine how much it is still owed, requiring review of the amounts paid as determined by
the trustee.
For those actually or potentially affected by the debtor's bankruptcy (whether technically creditors
or not), this information is, at the least, just as important as the public record information available
in the court files. Unless such information is openly available to those interested in the bankruptcy
proceeding, they will be seriously obstructed in determining what steps, if any, they need to take to
protect their interests. Efforts to curtail access to this information would interfere with the fiduciary
responsibilities trustees owe to creditors, including the fiduciary obligation to keep them informed
about the course of the bankruptcy.
The general public likewise has an interest in monitoring how well trustees are carrying out their
responsibilities under the Code. Such monitoring and oversight would be meaningless if information
about individual cases were not available. How can you access how well a system is working if you
cannot obtain information on how well it administers specific cases?
VI. Other Considerations
A. There is no reliable evidence of quantifiable harm to consumers from the present availability
of bankruptcy information.
We are aware of no evidence of extensive abuse under the present system of the availability of
bankruptcy information, either held by the courts or by the trustees. Unlike other areas where harm
has resulted from the lack of privacy, in bankruptcy, the lack of privacy has not been deleterious to
debtors. In fact, because they make their financial information available, the bankruptcy system is
enabled to provide them with prompt and effective relief.
Some commentators have suggested hypothetically that information in bankruptcy records, and
particularly the social security number, might be used for the purposes of identity theft or other fraud.
Identity theft in the case of a person who filed bankruptcy is highly unlikely because the economic
incentives for such theft are not there. The thief cannot obtain significant credit extensions in the
name of one who has filed for bankruptcy. Moreover, the higher level of underwriting scrutiny of
those who have passed through bankruptcy brings with it a degree of investigation a thief seeks to
avoid.
Other commentators have urged that credit grantors might use bankruptcy information to market to
debtors who have just received a discharge, or to determine candidates for redemption financing or
home equity take-outs from Chapter 13 proceedings. The market for such credit is extremely
specialized and extremely small. Only approximately 1.3 million consumer bankruptcies were filed
in 1999, and while bankrupt debtors are often eager to reestablish credit, the credit available to them
is usually only in small amounts and frequently on a prepaid or secured basis.
Whatever paternalistic concerns may exist as to whether debtors who have filed bankruptcy should
be offered a credit card or other credit, or even redemption or take-out financing, they do not justify
restricting the availability of information about debtors who file for bankruptcy simply to make it
harder to offer credit to them. This is particularly so when many bankruptcy professionals recognize
that the debtor's ability to reestablish credit is an important part of his or her "fresh start."
Some have also suggested that the availability of bankruptcy information should be restricted
because it might be used to discriminate in the granting of new credit on the basis of whether debtors
have filed for bankruptcy. However, if a debtor's prior bankruptcy is an accurate predictor of future
repayment likelihood, it is beneficial to the efficiency of the credit granting system if such
information is freely available.
In any event, excluding certain parties from access to information is not the appropriate way to
further policy objectives, whether those policies seek to limit credit availability to bankrupt debtors
or, conversely, to make credit more available by preventing creditors from considering prior
bankruptcy filings. Such indirect regulation has unintended consequences that are undesirable. In this
case, it would result either in interfering with the debtor's "fresh start" or in the inefficient allocation
of credit.
B. Restrictions on the development of more efficient means of obtaining bankruptcy information
are not desirable.
Increased availability of bankruptcy court records and trustee records by telephone, online and
through retrieval intermediaries has significantly improved bankruptcy administration and increased
the efficient workings of the bankruptcy system. Restrictions which curtailed availability of this
information would hurt the American consumer by increasing creditor costs of administering
bankruptcies, increases which are passed on in higher credit costs. As bankruptcy filing volume has
increased dramatically, the availability of bankruptcy information has offered a means to manage
what would otherwise be an overwhelming caseload. The availability of this information to the
public has made possible better oversight of the bankruptcy system, and, thus, furthered the ability
of the bankruptcy system to identify fraudulent and abusive use of bankruptcy, and to evaluate
proposed reforms.
Much of the discussion of debtor privacy appears to be alarm at these developments. However, they
should be seen as the improvements they really are and further encouraged. The more a creditor can,
through a low-cost and efficient system identify a customer as one who has filed for bankruptcy, the
more rapidly controls can be implemented to assure compliance with the automatic stay and
post-discharge injunction. Likewise, the more rapidly and cheaply a creditor can obtain the needed
information to evaluate its position, the more effectively it can participate in the bankruptcy
proceeding without filing needless discovery demands, or opposing, unnecessarily, the course of the
proceeding. The whole system can, through the use of technology, operate much more efficiently.
The long term beneficiaries will be debtors who will more promptly receive the relief intended, and
those who pay for all this--the American consumer who pays the costs of administering bankruptcies
in the price of credit.
Conclusion
In addition to the significant statutory and constitutional impediments to restricting access to
bankruptcy information, as a matter of policy, such restrictions would be neither feasible, fair, nor
consistent with appropriate public oversight. The present bankruptcy system assumes and, as a
practical matter, requires that creditors and others affected by the bankruptcy proceeding have free
and open access to court record information and trustee records if such debtor benefits as the
automatic stay and post-discharge injunction are to be fully effective, if creditors and other affected
parties are to effectively participate in the bankruptcy proceedings, and if the controls and limitations
on bankruptcy relief are to be enforced.
Moreover, public confidence in the bankruptcy system, which polls have shown is very much in
question, would be further undercut if the proceedings were conducted beyond the scrutiny of the
public, particularly at the insistence of the very courts whose activities are now open to public
scrutiny. The very nature of bankruptcy as an extraordinary remedy makes the public suspicious that
the considerable benefits debtors can obtain from it will be misused or misapplied. Conducting the
proceedings behind a screen of anonymity would only reinforce these suspicions. Such restrictions
would also prevent empirical research on how bankruptcy operates, even though such research is
vital to continued understanding and improvement of the process.
AFSA welcomes efforts to accommodate the demands of the bankruptcy system for information, the
role of public oversight of the extraordinary remedies bankruptcy offers, and individual privacy
concerns. There may be methods of increasing debtor privacy which will provide free and open
access to the information necessary for the bankruptcy system to operate efficiently and fairly within
the bounds of the Constitution, but they have not yet been suggested. However, restricting access
to the information which the bankruptcy system requires be available, and making it impossible for
bankruptcy information retrieval providers, credit reporting agencies, researchers and the press to
obtain critical information about what the bankruptcy courts are doing is not appropriate policy.
At least until some other approach than simply restricting access to information is proposed, it
appears that no constitutional and practical means exist which will both satisfy the need for
information of those affected by bankruptcy and the public, and at the same time assure a debtor
seeking bankruptcy relief as much privacy as he or she would otherwise enjoy. That result is not
necessarily unfortunate. In light of the significant benefits bankruptcy offers debtors, it is not unfair
that they sacrifice some privacy when they seek bankruptcy's extraordinary remedies, assuming that
no practical means exists to provide the desired level of privacy.
AFSA appreciates the opportunity to comment on the issues raised by the request for comment. If
you have any questions about our response, please contact either me or George J. Wallace at Eckert
Seamans Cherin & Mellott LLC, 202-659-6632, gjw@escm.com, our counsel in this matter. AFSA
requests the opportunity to present public testimony on the issues raised in this letter, should the
Judicial Conference decide to hold hearings.
No.227
1/29/01
Seattle, WA
I urge that comments, except where confidentiality is requested, will be posted on this website
ASAP.
No. 228
1/29/01
Brian Long
President, Dolan Media Group
Dolan Media Company is pleased to provide the Administrative Office of the United States Courts
with comments regarding privacy issues in access to electronic case files under the terms of the
notice appearing in the Federal Register of November 8, 2000, on pages 67016-67019. (Fed. Reg.
Vol. 65, Number 217). We request that the following general comments, along with the specific
answers to individual questions, be made part of the public record.
Background of the Submitter
Based in Minneapolis, Minnesota, Dolan Media Company is the nation's leading collector of
bankruptcy filing information. We monitor bankruptcy activity on a daily basis and provide
information to our clients who are primarily the largest consumer creditors in the country. Our
services provide a critical bridge between the bankruptcy courts and the creditors who are involved
in a bankruptcy case. Our services also provide an indirect benefit to bankruptcy debtors as further
described below. In addition to bankruptcy records, we also collect a variety of public record
information on consumers and businesses nationwide. The other types of information include tax
liens, judgments, and UCC filings amongst others.
GENERAL COMMENTS
Need for the Study and Clarity in Discussing the Issues of Privacy
Dolan Media Company commends the Administrative Office of the United States Courts for
undertaking this study of privacy issues in the context of access to court records. The Company
believes that this targeted effort represents an important step in bringing needed clarity to the
complexities of the privacy debate.
The overall privacy debate has too often been characterized by scare headlines in the media;
a one-size-fits-all approach to the protection of any and all information and data, regardless of its
source and use; and little discussion or understanding of the delicate balance between preserving
individual privacy and protecting the public's right to know. Dolan Media Company hopes that the
results of this study will lead to a greater general disclosure.
Public Records Data and Privacy
In the United States, there will (hopefully) always be an uneasy balance between the right of privacy
and the free flow of information. Both elements are necessary to the preservation of democracy, but
the proper calibration between privacy, on one hand, and disclosure, on the other hand, very much
depends on the specifics of each case, and a careful weighing of the costs and benefits in each
instance.
Much of the current concern over privacy centers on private data collection activities involving
Internet e-commerce sites, consumer mailing lists, etc. Applying privacy restrictions to such private
data collection raises an entirely different set of issues than those that apply to public record data
collected or generated by government.
And within the category of public records, there is a distinct difference between records for which
consumers have an expectation of privacy - drivers license information, health care records, and the
like - and other public records which have traditionally remained open to public inspection and
notice such as court proceedings, bankruptcy filings, tax and other liens, and similar matters.
There are deep-seated historic and wholly practical reasons for allowing open public access to this
latter type of record. Historically, America was founded on the belief that government power should
be limited, and that disclosure and open debate would protect us all. Consequently, we generally
limit pretrial detentions, secret trials, and sealed records.
We are mindful of the court's concern that new technologies and the increased use of electronic filing
opens up the possibility of wider and more pervasive distribution of public records. While
acknowledging this reality, the fact remains that a public record is precisely that -- i.e., "public," and
should not undergo some automatic access transformation merely because the record is now more
readily available. It does not matter how the record is more available, whether through the new
emerging technologies of electronic access or, in earlier times, through the widespread adoption of
the moveable type printing press, the carbon copy sheet and the facsimile machine.
As a practical matter, the only reason to collect many public records related to economic condition
or creditworthiness is to make this information available to the larger public. Without disclosure,
there is no way to differentiate between an individual with bad credit and a checkered history, and
someone with a stellar history of paying their bills. Without this information being made readily
available, the cost of obtaining credit and bank loans will go up for all Americans, and availability
will become slower and more restrictive.
A General Framework for Public Records Access
At the end of this submission, Dolan Media has provided specific comments on each of the
subsections contained in the Request for Comment ("RFC") notice. While the specific comments in
of each subsection may differ, we believe that a suggested framework, based on five principles,
emerges for guiding the Courts through the overall issue of public access verses privacy protection.
1.) The first principle in the framework is based on the strong and enduring public policy in favor
of absolute disclosure of certain basic facts involving court proceedings. Those facts include the
names of the parties in interest, the basis of the proceeding in court (i.e. was this a bankruptcy matter,
civil suit, etc.) In the case of bankruptcies, for example, absolute disclosure would have to be
maintained regarding the identity of the debtor (SSN, Name, Address) and facts about the case (filing
dates, chapter filed, judge, trustee, 341 meeting times, etc).
2.) The second principle starts with the presumption that the records in question are public in nature,
but also recognizes the long-standing policy and practice of the courts that on a case-by-case basis,
a court may agree to seal some specifics of the court records, beyond the basic material mentioned
in principle one above.
We believe this long-standing policy and practice should remain in place and in the hands of the
presiding judge of the case in question. That judge has the benefit of the testimony and the arguments
of the parties to the case, and is best able to make the individual determination that a record (or a
portion thereof) needs to be put under seal. We do not believe that a separate system of determining
access to court records, whether done on a case by case basis, or automatically, is appropriate.
The problems inherent in setting up a separate review and sealing process are clear. If done on a
case-by-case basis, such a system would, at best, be duplicative of the activities that occur on a
day-to-day basis in each courtroom, absent the benefit of first-hand exposure to the evidence and the
arguments. If done in some automatic fashion, such a process would convert the presumption of open
records into the exception, thus effecting a major change in the way our democratic society has
operated for centuries.
3.) Implicit in the suggestion that the decision to seal or allow court records to remain open is the
third principle that the parties in interest to the case should always have access to the records,
whether such access is obtained in person or through emerging technologies. We are particularly
familiar with this requirement in the case of bankruptcy proceedings, where the debtor and creditors
always have access to the proceeding files, whether sealed from the public or left open.
4.) The forth principle which must be incorporated into this framework is one that flows not so much
from historical access to court documents, but rather from the nature of global society in the 21st
Century. Disputes and court adjudication that used to take place between neighbors now occur
between parties separated by oceans, and buyers and sellers residing on different continents.
This spatial separation has increased the need for parties to disputes to utilize the services of agents
such as Dolan Media Company in order to access and extract public record data from the courts.
Therefore, a necessary adjunct of allowing the parties in interest to have continued, unfettered access
to court records, whether sealed or otherwise, is the obvious need for those parties to be able to
access these records through the mechanism of duly-authorized third party agents.
5.) The last principle in the framework outlined above is less of an element necessary to the
operations of the courts, and more of a query or cautionary to legislative bodies. If courts were to
begin sealing more records in bankruptcy, for instance, in response to perceived privacy concerns,
it is important that when the debtor emerges from bankruptcy and applies for credit anew, that new
potential creditors have the unfettered right to ask the debtor to disclose the details of his or her
bankruptcy.
The former bankrupt should be free to reject such a request as a matter of personal choice. By the
same token, the potential creditor should likewise be free to reject the credit application without fear
that such rejection would be seen as some sort of pattern and practice of disallowed conduct,
potentially subject to legislative oversight or control.
This last principle is based on the fact that even if under court seal, the specifics of a bankruptcy
proceeding contains important information that can allow future creditors to better assess the risk
of granting credit to a former bankrupt. A request for the voluntary disclosure of such information
is a legitimate business request on the part of the credit grantor, and should not be seen as conduct
that is in some way unfair or prejudicial to the party applying for credit.
Dolan Media Company believes that these five principles -1) open access to basic court information;
2) preservation of the decision to seal records maintained in the hands of the presiding judicial
authority; 3) continued access to all records by the parties in interest; 4) use of duly-authorized third
parties to stand in the shoes of the parties in interest for purposes of access to these records; and 5)
a realization that the information contained in sealed records is nonetheless the legitimate subject
of inquiry in subsequent forums - provides a framework for the courts to balance the competing
concerns for privacy with the need for continued open public records.
CIVIL CASE FILES
Of the four options presented in the RFC, we recommend that the courts pursue option 1 and
maintain the presumption that all filed documents that are not sealed are available both at the
courthouse and electronically. We believe that the litigants, attorneys, and judges to the case are in
the best position to determine which documents should be sealed from public access (in any form).
Option 1 provides total control over public access with the parties closest to the case without
restricting the long-standing principle of public access. It is this total control that makes option 1 so
compelling. Any other solution will only serve to take control away from the litigants, attorneys, and
judges in the case.
We see the courts only causing access problems and an administrative nightmare by pursuing options
2 - 4. For example, option 2 requires that a gatekeeper define what information should be excluded
from a file because it does not contribute to the reader's understanding of the case. Taken to the
extreme, this would essentially require that a representative of the court review and abstract each and
every document filed. The result would be two copies of the document; one original copy for the
court and one abstracted copy for public view. If the federal court system is over-worked now, it will
only become more so under option 2.
In a similar fashion, option 3 creates another gatekeeper to determine who is entitled to access a file.
The gatekeeper would have to make a determination, on a requester-by-requester basis, to whether
the credentials presented by the requester are sufficient to allow access to the
file. There is currently a large cottage industry of public record retrievers, employing thousands of
individuals nationwide, who retrieve court files at the request of attorneys nationwide. What kind
of credentials would these retrievers need to show in order to serve their legitimate clients?
In summary, we feel that option 1 is the only option that maintains court access without creating an
administrative burden for the courts and users of the system. Option 1 also leaves total control of
public access with the parties best able to determine so; the litigants, attorneys, and judges in the
case.
CRIMINAL CASE FILES
We believe that the approach described for civil cases above is also the best approach for criminal
cases. The parties, attorneys, and judges to the case are in the best position to determine which
information should not be disseminated. Additionally, the continued availability of this basic
information is essential to certain legitimate uses like pre-employment screening.
BANKRUPTCY CASE FILES
Unique Characteristics of Bankruptcy and Other Adjudicative Proceedings
In addition to the historic and practical reasons for generally allowing access to public records data,
bankruptcy and other adjudicative proceedings have other characteristics that argue for disclosure,
based on the fact that these events trigger the application of government power to an otherwise
private situation.
In bankruptcy proceedings, as well as in other areas such as foreclosures, liens, and court judgments,
government power and decision-making is interposed between private commercial relationships. The
application of that government power gives the public a compelling interest in the disclosure of those
proceedings in order to insure fairness and the proper use of government power.
Moreover, consumers who enter bankruptcy avail themselves of certain specific government
protections not available to the citizenry at large. For instance, in most cases, their overall debt load
is reduced and/or forgiven, a benefit unavailable to other consumers who carry large debts but who
avoid bankruptcy. Individuals in bankruptcy are provided additional privacy protection unavailable
to other citizens. Once an individual has entered bankruptcy, his or her creditors are prevented from
contacting that individual to seek payment of debt. Again, this is a level of protection that the
average consumer does not enjoy. It should be noted that this benefit is only available because of the
public availability of data regarding the identity of individuals who file for bankruptcy.
In order to insure that the bankruptcy system works and is not abused, disclosure of information
regarding the bankrupt is absolutely imperative in order to notify possible creditors of this status and,
in some cases, to allow those creditors to challenge the filing. Beyond the immediacy of bankruptcy
filing, it would seem only fair that consumers who have not filed for bankruptcy have this factored
into their credit histories; and that those who have filed likewise have this taken into account. This
can only occur if data regarding the bankruptcy is freely available to public.
How We Collect and Use Bankruptcy Information
The information we gather includes debtor name, address, social security / tax ID number, court
location, case number, chapter, and other basic case information. All of the information we gather
is public record information available within the initial petition and schedules that are filed with the
court. Our primary source of this information is the bankruptcy court's computer system (often
referred to as PACER). We also retrieve specific bankruptcy documents on behalf of creditors who
need to learn more information about a particular bankruptcy proceeding.
In general, our clients are the largest creditors in the country who use the information for a variety
of credit-related reasons. Creditors find that our electronic delivery of the information is a more
efficient and cost effective than paper based methods, and reduces the chances of error. We also
provide bankruptcy information to the major credit bureaus to update the consumer's credit :file.
Ironically, many US Bankruptcy Trustees receive new case assignment information from our
collection activity instead of from the court.
The information we collect is used to alert the creditor of a consumer's bankruptcy. This use of the
information allows the creditor to stop collection attempts to the debtor. Open access 1:o bankruptcy
information allows creditors to quickly remove bankrupt consumers from collection call queues, and
collection letter mailings. This keeps the creditors from violating the automatic stay of bankruptcy
that is effective at the time of the petition filing. To this extent, most debtors needing bankruptcy
protection would have an interest in making sure their information is reported quickly and accurately.
The bankruptcy information is also used by the credit bureaus to update and maintain accurate credit
files on consumers. These credit ratings help assure that those individuals who demonstrate the best
history in terms of credit, are able to receive the most favorable credit terms. The credit bureaus are
also able to use the information in ongoing fraud prevention efforts.
Finally, the very purpose of a bankruptcy filing is to notify others of the financial condition of the
debtor. Our collection and distribution activities support this purpose more efficiently than any other
solution today. Our clients can do a better job of controlling bad debt and avoid collection activity
that violates the stay of bankruptcy. Additionally, the debtors benefit by quickly receiving the
protection they seek from harassment by debt collectors. Unrestricted access to this information will
allow us to continue to serve both the creditors and debtors in an efficient and cost effective manner.
Our Recommendation
We believe that the only way to protect the integrity of the bankruptcy courts, and to allow the
dissemination of information to creditor's and others with a legitimate interest in the case, is to
maintain open access to all bankruptcy information. We do not think that any changes -ire necessary
to the current system.
As with our response provided for civil cases above, open access still leaves total control over
privacy and access with the parties closest to the case; the litigants, attorneys and judges.
In specific regard to social security numbers ("SSN"), the dissemination of the SSN is the primary
method of detecting credit and identity fraud. Without the SSN, our ability to fight both types of
fraud is greatly diminished.
APPELLATE CASES
We agree with both items presented in the RFC. The appellate courts should apply the same access
rules to appellate courts that apply at the trial court level. Additionally, the appellate courts should
treat any document that is sealed or subject to public access restrictions at the trial court level with
the same protections unless and until a party challenges the restriction in the appellate court.
SUMMARY
In general, we feel that the judiciary's long standing tradition of open access to public court records
should be maintained. Furthermore, the current system allows for a `sealed file' that leaves total
control of public access with the parties closest to the case; the litigants, attorneys, and judges. The
parties have not lost any control over their information and are not threatened by electronic
dissemination of case files.
Furthermore, any solution developed should take into account the following five principles - 1) open
access to basic court information; 2) preservation of the decision to seal records maintained in the
hands of the presiding judicial authority; 3.) continued access to all records by the parties in interest;
4) use of duly-authorized third parties to stand in the shoes of the parties in interest for purposes of
access to these records; and 5) a realization that the information contained in sealed records is
nonetheless the legitimate subject of inquiry in subsequent forums - provides a framework for the
courts to balance the competing concerns for privacy with the need for continued open public
records.
We appreciate the opportunity to comment on this important issue of public policy.
No. 229
1/29/01
Agree with option No. 3 under civil cases Access to social security numbers should be restricted.
People use social security numbers for identify theft which puts debtors public at risk if social
security numbers are posted on the internet. Schedule I information on Bankruptcy petitions should
be restricted. The names of the debtors children(dependents) should be removed. Children have
rights to privacy & should not be submitted to adverse public scrutiny. Many debtors do not know
that Bankruptcy information is available on the internet about their cases. The 'Notice of Meeting
of creditors' & 'Order to debtor' should state to the debtor that information about their case is
available on the internet (list court website). Also attorneys that are filing electronically should
inform their client/debtors that when cases are filed electronically the entire bankruptcy petition is
available over the internet. Debtors should have the right to have a choice whether or not they want
to file manually or allow the entire bankruptcy petition to be published over the internet with
electronic filing. An entire petition on the internet adversely affects the debtor by publicizing their
financial situation to the world, this private information could very easily get in to the wrong hands
or be used unfairly by others to deny the debtor freedom in conducting their financial affairs.
No. 230
1/29/01
Norma Hammes
President, National Association of Consumer Bankruptcy Attorneys
Enclosed are the comments of the National Association of Consumer Bankruptcy Attorneys
regarding your Office's review of Privacy and Public Access to Electronic Case Files. These
comments were previously submitted to the Executive Office for United States Trustees with regard
to its Study of Privacy Issues in Bankruptcy Data. Therefore, the structuring and numbering of the
comments refers to particular questions which were asked by that Office. It is hoped that these
comments will be of use in your study also.
The subject of your study, as well as that of the Executive Office for United States Trustees, is of
great importance to the clients of our members. Accordingly, our organization is extremely
interested in assisting your office in fully assessing the complex issues involved in it and would be
interested in providing testimony at a public hearing.
Thank you for the opportunity of providing these comments and we remain ready to offer any
additional insight or information you may request.
ATTACHMENT
NACBA submits these Comments with respect to consumer Chapter 7 and Chapter 13 cases, as well
as small business Chapter 13 cases.
1.1 Types of information collected. maintained. and disseminated.
a. Information which is submitted along with a bankruptcy petition.
11 U.S.C. § 521 and Federal Rule of Bankruptcy Procedure (FRBP) 1007 require the debtor to
submit the following information:
All names (including fictitious business names) used by the debtor within six years of the bankruptcy
filing; [ 1.2]
The debtor's social security number and employer identification number
(if the debtor is or has been engaged in business); [1.2]
All addresses of the debtor within two years of the bankruptcy filing; [ 1.2]
List of all assets of the debtor, including among others: [1.2]
Bank accounts (perhaps with account numbers) Insurance policies Shares of stock or stock options,
or bonds Household furnishings, personal effects, jewelry Retirement plans, annuities, trust interests
Vehicles, business equipment, causes of action or litigation real property interests in property owned
jointly with non-filing persons, including spouses or other relatives property for which the debtor
serves as custodian or trustee
List of all debts of the debtor, with account numbers, dates incurred, and amounts owed. This list
includes debts of the following types (although the current bankruptcy schedules do not separately
identify these categories as such): [1.2]
(a) Debts which will survive bankruptcy, such as:
(i) nondischargeable income taxes
(ii) nondischargeable student loans
(iii) nondischargeable child and spousal support
(iv) mortgage loans
(v) vehicle loans and other secured debts
(vi) leases which will be assumed by the trustee or debtor
(b) Debts which will be wiped out in bankruptcy
(c) Debts of a non-filing spouse for which the debtor may be liable
under state law (including account numbers)
Names and addresses of non-filing codebtors [1.2]
Projected monthly income of the debtor (and the debtor's non-filing spouse in Chapter 12 and 13
cases), including gross income and deductions; and the job title and name and address of the
employers, as well as length of employment; [ 1.2]
Projected itemized monthly expenses, including sensitive items such as religious donations, fines,
and specialized school expenses; [1.2]
Debtor's income and sources of income for the last two years; [ 1.2]
Names and addresses of relatives or other insiders who have received payments from the debtor
within the last year (potential preferences); [ 1.2]
Names, relationships and ages of those dependents for whom the debtor either pays or receives
support;
Debtor's fire, theft, casualty or gambling losses within the last year; [1.2]
Debtor's payments for bankruptcy consultations or services within the last year; [ 1.2]
Locations of safe deposit boxes open within the last year; [1.2]
Names and addresses of all businesses the debtor has been involved in operating within the last two
years; [ 1.2]
The debtor's attorney (or a non-attorney bankruptcy petition preparer) must disclose fees paid (or
promised to be paid) by the debtor within a year of the bankruptcy [1.2]
Information which is submitted after a bankruptcy petition is filed
(1) Chapter 7 Consumer Debtors (a) In "no-asset" cases, it is rare for the debtor to be required to
submit additional information to the court or trustee
(b) In "asset" cases, the debtor may be required to submit copies of tax
returns (including the one filed after the bankruptcy filing); W-2s,
1099s, paycheck stubs, invoices, receipts, and bank statements.
[1.3]
(2)Chapter 13 Debtors(a) The debtor keeps the trustee informed of his/her residence and/or
mailing address, and name and address of employer [1.3]
(b)The debtor must usually apply (providing detailed proposed terms)
to the trustee or the court for permission to: [1.2 or 1.3]
(i)borrow money, such as obtain a loan to replace a vehicle
(ii)sell, refinance, purchase, or otherwise use property which has not been revested in the debtor
(iii) acquire a business interest
(c) The debtor's attorney often is allowed attorney's fees in a semi-fixed amount which is paid
through the debtor's Chapter 13 plan payments. If the attorney's required services exceed the usual
allowed amount, the attorney must apply to the court for approval of the additional fees [FRBP
2016]. If the fees exceed $500, the application must be noticed to all creditors, as well as the Trustee
and US Trustee [FRBP 2002]. The application must include an itemization of all services performed
by the attorney. Depending on the degree of detail, this requirement may compromise the
attorney-client privilege. [ 1.2]
(d) The trustee maintains records of: [1.3]
(i)the debtor's payments into the plan
(ii)the debtor's address and employer's name and address
(iii)names, addresses, account numbers of creditors which have filed claims in the debtor's case
(iv)amounts and categories of creditors' claims
(v)payments to these creditors
(e)The creditor files a proof of claim with amount, account number, category and any documentation,
attached. [ 1.2]
(f)Creditors may file Motions for Relief from the Automatic Stay during the Chapter 13 case in order
to proceed against property of the debtor in certain cases. For example, if a debtor falls behind
on his/her home mortgage payments after filing a Chapter 13 case, the mortgage lender may file such
a motion to proceed to foreclose on the home. Detailed information regarding the debtor's
payments or failure to make payments is often filed with the court and served on the trustee. Motions
for Relief may also be filed in Chapter 7 cases, but are not so frequent because the time between
filing and discharge (when the automatic stay is vacated by law) is only a few months. [ 1.2]
Information which is disseminated after a bankruptcy petition is filed In addition to the dissemination
of data mentioned above, whenever creditors are noticed in a case, the debtor's social security
number and address must be included in the notice. Examples of such notices include, among others:
[1.2]
(a) Chapter 13 plan modification applications
(b) Attorney's fee applications
(c) Applications to sell, refinance, purchase, or otherwise use property
(d) Objections to creditors' claims
(e) Motions to avoid or value liens
1.2 The items in 1.1 above which are public record data are annotated with [1.21.
1.3 The items in 1.1 above which are non public record data held by bankruptcy trustees are
annotated with [1.31.]
More Sensitive Types of Data.
The most sensitive types of data include the debtor's social security number; current
address; employer's name and address; names, addresses, account numbers, balances, description
of security with regard to debts which survive bankruptcy; account numbers of bank accounts
and safe deposit boxes; names and addresses of non-filing codebtors; names and ages of non
filing support payees; job title, employer and income of non-filing spouse; names and ages of
dependents; sensitive budget items such as religious donations, fines, and specialized school
expenses.
1.6 How Valuable is the Information in the Marketplace?
This information is sufficiently valuable so that an industry to compile and disseminate much of it
(privately or publicly) has begun to develop, including:
segments of the credit card industry which coordinate objections to discharge and market new credit
to bankrupt debtors collection agencies which buy and file claims in Chapter 13 cases credit
reporting agencies private case filing compilers NACTT's proposed sale of Chapter 13 plan claim
and payment information;
Chase Bank's ownership of the site used by many Chapter 13 trustees across the
country for managing receipts and payments in their cases;
Internet retailers (e.g., Amazon.com, per a recent news article) that may adjust
discounts offered to purchasers based upon their individual demographics -- or,
conceivably, based upon the fact that they have filed a bankruptcy and the
impression that they may be less discerning consumers;
U.S. Bankruptcy Courts' on-line calendaring and electronic case filing systems
Current & Envisioned Practices for the Collection, Analysis & Dissemination of this Information.
This question is better answered by those who collect, analyze, and disseminate this information.
What Access Do Various Parties Need?
This information is better answered by those who need to access the information.
However, the primary reason for creditors to require this information is in order to be
able to identify the debtor and differentiate him/her from others with similar names in
order to locate the account balance. It should be noted that under current law, it is not
unusual for creditors to misuse bankruptcy information. For example, vindictive former
spouses or in-laws on occasion misuse public bankruptcy information to humiliate honest
debtors. Similarly, stalkers or abusive former spouses/boyfriends can locate their victims
through information in their bankruptcy files.
Debtors have privacy interests in public record data? Particularly given the broad dissemination of
public record data which exists, debtors are entitled to have the information they provide protected
from unnecessary disclosure. In particular:
Although pending bankruptcy legislation advocated by the credit card industry
would make the current problem much worse, debtors should be required to
provide no more information than is necessary for:
(1) the creditors to identify the debtor in order to file a claim
(2) the trustee to review the debtor's assets, their values, and the debtor's right
to the claimed exemption
the trustee to review the debtor's ability to repay his/her debts
To what extent do bankruptcy debtors understand that their bankruptcy file is available to
the public?
While bankruptcy debtors generally are very fearful about the bankruptcy process and
tend to assume that they will be humiliated throughout it, they are normally unfamiliar
with the bankruptcy court filing system. For example, it comes as a surprise to some of
them that they do not need to personally go to the bankruptcy court to file the case -
some think that the court hearing comes at the beginning, rather than a month into the
process. The system of having voluminous files for each case is probably imagined
only by debtors who work with bureaucratic filing systems in their own jobs. In addition,
the fact that these files may be available for review by any member of the public is
probably not envisioned by debtors.
Should bankruptcy debtors be required to forego some expectation of privacy?
Bankruptcy debtors should not be required to forego any expectation of privacy, except to
the extent it is inconsistent with providing information on a "need to know" basis, with all
possible precautions and protections in place.
Are there characteristics about bankruptcy debtors that raise special privacy concerns?
As shown by recent studies conducted by Professors Elizabeth Warren and Jay
Westbrook, a significant percentage of bankruptcy debtors are single parents (primarily
mothers) with children. These debtors are particularly likely to be victims of abuse or
involved in acrimonious relationships with the other parent or former in-laws. As noted
above, these debtors need extra protection with regard to personal data included in
bankruptcy files. In addition, the elderly may be more vulnerable to scams and could be
targeted by using information in bankruptcy files.
What are debtors' expectations about uses and disclosures of information by bankruptcy
trustees?
In general, debtors expect that information which they provide directly to the trustee will
be kept private by the trustees.
What would be the consequences if nonpublic data were made widely available?
Non-public data such as tax returns, paycheck stubs, and bank statements, would
seriously compromise bankruptcy debtors if they were made available to creditors and the
public. Pending bankruptcy legislation would require the filing of several years of tax
returns with the bankruptcy court for each debtor, reversing our historical protection of
the privacy of tax returns.
Are privacy interests affected if the distribution of nonpublic data is for profit? Already this is
occurring. The NACTT and Chase distribution of non-public data is "forprofit". To the extent that
computer databases and networks are established to distribute this information, the pressure will be
to include more and more data in the system in order to make the accumulation increasingly more
valuable to the users. The value to the users becomes the focus, rather than the privacy of the debtor.
What are some recommendations for policy regulatory or statutory chances?
Bankruptcy data should be protected in the following ways:
Sensitive data about the debtor and non-filing parties which is necessary for the
creditors and trustee to have should be compiled on separate documents which are available to them,
but not available to the public.
Serious penalties should be imposed on creditors that use any information received in connection
with the bankruptcy filing for any purpose other than to collect a debt directly from the debtor, which
debt has been found to be nondischargeable by the bankruptcy court. Trustees should be held liable
for disseminating or allowing dissemination of sensitive information to anyone other than the debtor
or his/her attorney. In addition, trustees should be prohibited from releasing case administration and
disbursement data to anyone except the debtor, the debtor's attorney, and a listed creditor in that case.
Any entity which owns the hardware upon which any of the information described as protected is
stored, or which operates any Internet-site containing such information, should be held liable and
subject to serious penalties if it accesses or uses such stored data in any way.
No. 231
1/29/01
American of Trial Lawyers
Irvine, CA
This letter sets forth the response of the Committee on Federal Civil Procedure (the "Committee")
of the American College of Trial Lawyers (the "College") to the Request for Comment on Privacy
and Public Access to Electronic Case Files (the "Request"). The College is dedicated to maintaining
and improving the standards of trial practice, the administration of justice and the ethics of the legal
profession. The Committee is charged by the College with monitoring the operation of federal civil
procedural developments, to determine the adequacy of the operation of the rules and procedures in
federal civil cases, and to evaluate proposed changes. We submit these comments with the hope that
they may prove useful in the rulemaking process.
The Request seeks comment on the privacy and security implications of providing electronic public
access to court case files. The Request identifies four proposed alternatives that might be utilized to
address electronically-available civil cases:
1.Maintain the presumption that all filed documents that are not
sealed are available both at the courthouse and electronically.
2.Define what documents should be included in the "public
file" and, thereby, available to the public either at the
courthouse or electronically.
3.Establish "levels of access" to certain electronic case file
information.
4.Seek an amendment to one or more of the Federal Rules of Civil Procedure to account for privacy
and security interests.
Item 1 encompasses a substantive legal principle - that unsealed filed documents are
publicly-available judicial records - and an implicit suggestion that some distinction might be drawn,
for public accessibility purposes, between paper and electronic. Item 2 suggests a codification of the
common-law "judicial records" doctrine, which presumptively would apply to both paper and
electronic documents. Item 3 suggests that different access may be given to certain types of
electronic information, but not necessarily to paper counterparts. Item 4 contemplates a Rules
amendment on the subject of "privacy and security interests," but does not articulate the substance
of such an amendment.
As a general matter, in setting policy for public access to judicial records, the Committee does not
perceive any compelling reason to distinguish between electronic and paper files. It is true that the
advent of electronic filing may make records more available. This, however, would appear to level
the playing field so that parties with fewer resources will have the access to filed documents that
parties with significant resources already enjoy. In concept, therefore, equal electronic access strikes
us as a potentially positive, rather than negative, development.
It appears that privacy concerns motivate some of these policy alternatives. We understand that at
least some of the concern revolves around possible commercial exploitation of otherwise private
data. We note, at the outset, that parties can, as a general matter, protect their individual privacy
concerns by seeking Rule 26(c) protective orders.
Nonetheless, we recognize that the underlying privacy concerns may be quite valid, notwithstanding
Rule 26(c), as the veil of practical obscurity is lifted by electronic access. To the extent that Rule
26(c) orders are deemed insufficiently protective, or so broadly necessary that individual orders are
impractical, the underlying privacy concerns seem to the Committee to be equally applicable to paper
as to electronic information. As scanning technology improves and cost declines, the practicability
of quickly and cheaply converting paper files into electronic format will only increase over time.
This leads us to the conclusion that no distinction ought to be drawn between electronic and paper
records as regards public access.
Accordingly, the Committee is of the view that whatever privacy judgment is made, it should apply
to both paper and electronic records and should be clearly set forth in the Federal Rules of Civil
Procedure. It is also the sentiment of the Committee that, if (contrary to our views) a distinction is
to be drawn between access to electronic and paper files, it ought to be set forth in the Rules. The
Committee considers it to be of paramount importance that litigants and their lawyers be fully
apprised of the prospects for public disclosure so that they can take appropriate steps to protect their
interests.
On behalf of the American College of Trial Lawyers, the Federal Civil Procedure Committee wishes
to express its gratitude to the Court Administration Policy Staff for the opportunity to present our
views. It is our goal to be of assistance and we look forward to the opportunity to do so in the future.
No. 232
1/30/01
Richmond, VA
Contrary to the current political rhetoric persons seeking bankruptcy protection do so reluctantly.
Identity theft is increasing. Information is power for both good and evil. The courts should act
responsibly to protect persons seeking legal protection from abuse. Those with legitimate interests
can still be allowed to access the broadest level of information within the limits and protection
presently afforded by requiring them to "show up at the court house." I agree with the proposed
policies except for Bankruptcy 2. Courts should require full and complete disclosure with safeguards
for debtors seeking bankruptcy protection.
No. 233
1/30/01
Mark J. Mahoney
Harrington and Mahoney
Buffalo, NY
The trend toward Electronic Case Files is irreversible and it is necessary for an efficient and effective
system of criminal justice. Since we can envision being able to electronically file pleadings, and
exhibits, these must be accessible to us readily. Ontario and other Canadian provinces is making
great headway in converting to electronic filing.
The problem is that, while agreeing in principle with the idea that court records are public, that was
easy to say when only a handful of people could get to the courthouse, or knew that such records
were available. The prospect that people might actually have easier access to this information makes
some people "jittery." It is usually the government, not the defendants. That is because the
government has an easier time of it if only the government is aware of the details of cases involving
cooperating witnesses, and so on. While there is scant evidence in my career, of defendants
"misusing" information if court files, there is prevalent evidence that prosecutors conceal
information about the past wrongdoings of witnesses, deals with witnesses, benefits to witnesses,
prior testimony by witnesses, all of which is in the public domain, but with the whereabouts just
known to the government.
If trials are a search for truth, there ought to be assurance of access to the whole truth. What is true
in one courtroom has to be relevant and available in determining what is true in the next.
Facts revealed in one case maybe truly relevant, truly essential to the fair determination of other
cases. In criminal cases the government always has a representative in a case, and there are at least
two conduits by which a prosecutor in one case can be made aware of such relevant facts in another
case in another district; the investigating agency, and the other prosecutor. The defense, however,
suffers from a great disadvantage in this area. The defense may have no idea of the existence of
another prosecution or of relevant filings therein. One day these records should not only be
available, but searchable.
We have used docket entries from other cases in other districts in order to establish the sentencing
patterns there for offenses which were related in some fashion to a case we have. In a recent trial
I discovered that the "case agent" was lying in court using a case record from an earlier prosecution
in another state. The prosecutor knew nothing of this, as the agent had certainly concealed it from
the prosecutor also.
With fuller development of electronic case files it will be easier and less expensive to determine the
issues involved in related prosecutions, and find information about witnesses, including police
officers and "cooperating witnesses" to which we would be entitled under constitutionally-compelled
rules of disclosure, but which are often held back by the government, trusting that the information
is so buried in court files that we would never be able to locate it.
But getting to the more mundane, we constantly use PACER access to court files in the Western,
Northern, and Eastern Districts of New York in order to make sure we have current information as
to the status of the cases in which we are involved. We also need to check dockets in cases where
defendants seek to retain us in order to determine if there is a potential conflict of interest. We use
the electronically downloaded Docket in order to prepare an index of the record on appeal and to
check the docket entry number of relevant filings. These records also allow us to determine who the
prosecutors and other defense counsel in cases which become relevant. Accessing this basic
information by personal visits to the court house–when proximate—or by phone to the clerks would
use up many hours of time for the bar and for clerk personnel, a waste which was presumable sought
to be avoided by the establishment of PACER to begin with.
Regarding the specific proposal for Criminal cases. I believe that there are be categories of
information that needs to be kept limited access. Primarily the rationale I would propose is that
persons accused of crime ought not be forced to give up rights to privacy as a price for asserting
fundamental rights. The government can always choose whether to introduce certain information
in a case where they value the secrecy of the information more than the use of it to obtain a
conviction. The accused should never be put to such a choice. Procedures should be available to
restrict access to private information which is not by its very nature intended for use at a public trial.
We already have protections for pretrial release, presentencing data, and the availability to have
records "sealed." That should continue.
There have to be two issues. What is publicly accessible AT ALL, and whether there is a rationale
to make what is public, when one goes to the court house, not public by way of dial-up or internet
access? The dominant rationale is to use the cost and inconvenience of going to the courthouse, and
a sort of "profile" of the person likely to do so (those comfortable or knowledgeable about entering
and using court buildings—I doubt that could ever pass a test for non-discrimination), as the means
to regulate access in default any rational or constitutional policy choice about access.
At least starting with the assumption that the vast majority of users have legitimate purposes for
accessing the information, is the danger of misuse by a tiny few (1) addressed by, or (2) great enough
to justify, inconveniencing the vast majority? That is, how likely is it that those who would misuse
the information would not be willing to walk to the courthouse to get it? What evidence is there of
dangers of actual misuse anyway?
"Do not provide electronic public access to criminal case files. This approach advocates the
position that the ECF component of the new CM/ECF system should not be expanded to include
criminal case files."
"Due to the very different nature of criminal case files, there may be much less of a legitimate need
to provide electronic access to these files."
I do not know what is "different" about criminal cases except the high stakes for the accused. That
translates to a greater need to all the information, and the information in the most useful form.
Specific concerns, rather than presuppositions about the "dangerousness" of information in the
"wrong hands" can be addressed, but I point out that stinginess about accused persons having access
to information is usually "justified" by claims that defendants present a threat to others or to the
courts, via perjury, if they know too much about the charges. While these rationalizations have been
discredited in many contexts, what they really mask is a basic instinct to give tactical advantage to
the prosecution that would be unheard of in civil cases.
" The files are usually not that extensive and do not present the type of storage problems presented
by civil files."
Document management is as big a problem in criminal cases, and at least the defense bar is often
more challenged than the civil bar which is less dominated by sole practitioners. The trend is toward
more and more large "document" oriented cases in federal court. Moreover, there are high costs in
document management in the CJA program that can be alleviated by electronic access to materials
which otherwise may have to be copied several times over at a cost far greater than. That is, we have
CJA lawyers representing indigent defendants, and the economy of ECF is needed as much there as
in civil cases.
"Prosecution and defense attorneys are usually located near the courthouse."
Usually not. The Norther District of New York spreads from Binghamton to Albany to Watertown.
The Western District of New York includes Buffalo and Rochester and 17 counties. But even a walk
two blocks to search records–if a clerk is available–is expensive, either for the lawyer or for CJA.
And, the issue is the benefits of having the information electronically and not being dependent on
the office hours and availability of the clerk.
"Those with a true need for the information can still access it at the courthouse."
The problem here is to assume that there are relevant shades of "need." Why cannot the purely
"curious" not access public records? How do we distinguish between "true need" and something
less? This rationale, again, is realistically just a choke mechanism, a non-rational way to restrict
access to information, on the assumption that we are more comfortable with those familiar or
proximate to the courthouse having access.
"Further, any legitimate need for electronic access to criminal case information is outweighed by
safety and security concerns."
Without quantification of the "legitimate need" on the one hand, and verifiable "safety and security
concerns," on the other, this is a completely arbitrary argument. Indeed, a stronger case could be
made for the ability of con-artists to "steal the identity" of individuals who are parties to civil cases
than for the idea that any information that would otherwise not be perfectly apparent would be found
in court records to assist in intimidation of witnesses, etc.
"The electronic availability of criminal information would allow co-defendants to have easy access
to information regarding cooperation and other activities of defendants. This information could then
be used to intimidate and harass the defendant and the defendant's family."
While one has to appreciate the effort to make this restriction appear "defendant-sympathetic,"
defendants are well aware of who their co-defendants are, where they are, and whether they are
planning on "cooperating" with the government. This, after all, is the "name of the game" these days
in federal court. You don't need the internet to tell you which way the wind is blowing. In fact,
very little exists in court records about ongoing plea discussions. Occasionally this may be used as
the grounds for an adjournment, but that would be public information anyway. Co-defendants are
likely to be actually in court when the most sensitive information, like that gathered in pretrial
release investigative reports, is discussed, which would never be public anyway.
"Additionally, the availability of certain preliminary criminal information, such as warrants and
indictments, could severely hamper law enforcement and prosecution efforts."
This is very difficult to fathom. Obviously we are not talking about sealed indictments. And
warrants, if filed at all, are not filed before executed. Decisions about possible exposure of the
investigation are already taken into account by the government in timing arrests, indictments and the
execution of warrants. What advantage is it to law enforcement to have information that has already
appeared, or could appear, in the newspaper be unavailable to an attorney on-line?
"Provide limited electronic public access to criminal case files. This alternative would allow the
general public access to some, but not all, documents routinely contained in criminal files. Access
to documents such as plea agreements, unexecuted warrants, certain pre-indictment information and
presentence reports would be restricted to parties, counsel, essential court employees, and the judge."
This is a far more sensible and rational approach, and reflects what I said earlier that there are
choices which must be made about keeping some information sealed. My concern would be that the
circle of access must enable those defending charges in one case to find pertinent information in
other cases, even if not generally accessible. With PACER now there is accountability, there is a
record of the files I access, and I can adhere to reasonable constraints on the use (and reuse) to this
information.
I hope that these comments are of assistance to the Administrative Office and the Court
Administration Policy Staff.
No. 234
1/31/01
Investigative Reporters and Editors, Inc.
Missouri School of Journalism
Columbia, MO
Pursuant to the request of the Judicial Conference ("Request for Comment"), Investigative Reporters
and Editors, Inc. ("IRE") hereby submits its comment on the implications of restricting or eliminating
access to electronic court files maintained by the federal judiciary. IRE is a not-for-profit
organization dedicated to improving the quality of investigative reporting within the field of
journalism. Its more than 4,500 members work for the nation's leading broadcasters, cable operators,
newspapers, magazines, and new media companies, and are directly engaged in the day-to-day
practice of acquiring and disseminating news to the public. Together with the Missouri School of
Journalism, IRE also operates the National Institute for Computer-Assisted Reporting, which trains
reporters in the practical skills of analyzing electronic information and provides databases for use
by professional journalists.
IRE would be pleased to participate in a public hearing if one is held, and respectfully requests that
it be provided an opportunity to do so. IRE's comment addresses the following three issues: (1) full
public access to court electronic records; (2) elimination of fees for remote access to court electronic
records on federal judicial web sites; and (3) adequate measures already in existence to ensure
legitimate privacy interests with respect to the presumptive availability of publicly filed federal court
records.
As set forth more fully below, IRE believes that unrestricted remote access to court electronic
records provides the public with critical information about health and safety issues. IRE therefore
believes that the public will be endangered if this vital source of information is curtailed by Judicial
Conference policy. IRE also believes that the expense of providing access to court electronic records
is already covered by U.S. taxpayers, and that it is unfair to further burden American citizens by
requiring them to pay unreasonable fees for information that should be freely available on
government-operated web sites. In addition, IRE believes that discrimination among end users of
data based upon personal status, together with the overall exclusionary effect of charging fees for
remote public access to court electronic records, will effectively shut off access to vital public
information for a substantial segment of the population, including many of the most impoverished
members of our society. Lastly, IRE believes that adequate protection for confidential and private
information already exists in the form of thousands of existing or pending federal, state, and local
statutes, regulations, and rules. If properly enforced, these measures should address the concerns
raised by the Request for Comment about disclosure of confidential or sensitive information in court
electronic records, and preclude the need for implementing any "policy guidance" by the Judicial
Conference.
The Common Law, U.S. Constitution, and Statutory Scheme that Provides for Operation and
Funding of the Federal Courts Mandate Full Public Access to Electronic Records Via the Internet
IRE strongly urges that the Judicial Conference – or the appropriate Congressional committees or
subcommittees – conduct open hearings on any proposals that would thwart broad access to public
court records via the Internet. IRE believes that any intervention by the Judicial Conference that
would effectively curtail Internet access to public court records is unnecessary and politically
unsound. For reasons that could perhaps best be presented in evidentiary hearings, IRE further
believes the such action would contravene the traditional presumption of public access to court
records under the common law and the First Amendment, and would also be constitutionally suspect
under the equal protection clause and separation of powers doctrine. In addition, IRE believes that
authority to restrict public access to court electronic records under federal statutes is subject to
limitations in the statutory scheme enacted by Congress to provide for funding and operation of the
federal judiciary, including, but not limited to, 28 U.S.C. §§ 101, 331, 612, 614, 1913, 1914, 1926,
and 1931, together with the relevant legislative history underlying these and related statutes, such
as the Federal Courts Improvement Act of 2000, judiciary appropriations acts of the past decade, the
Judicial Amendments Act of 1994, and all legislation concerning the establishment, function, and
operation of the Judiciary Information Technology Fund.
IRE understands that other commentators, including bar associations and media companies, plan to
submit comments addressing the constitutional grounds for discouraging involvement of the federal
judiciary in restricting access to court electronic records. IRE has therefore focused its comments
on different considerations, although it will be pleased to supplement its response on any issues
deemed to be of further interest to the Judicial Conference.
"Pay Per View" User Fees for Public Access to Court Records Available on Federal Judicial Web
Sites Are Unjustified and Unreasonable, and Should Be Discontinued
IRE also strongly urges the Judicial Conference to discontinue imposing fees for electronic access
to court records by the public. IRE believes that the existing and proposed fees for access to public
court records via the Internet through PACER are unjustified and unreasonable for numerous
reasons, including the following:
Sufficient funding has been provided by Congress for public access to court electronic records:
Congress appropriated approximately $4.3 billion to the federal courts for FY 2001. U.S. taxpayers
have therefore already paid for the collection, parsing, and distribution of public court records by the
federal judiciary, and should not be required to purchase and repeatedly repurchase this same data
from government-operated web sites on the basis of the 7¢ "pay-per-page-view" formula currently
administered by the U.S. Office of Courts. Whatever, the short term economic benefits derived from
the "self-funding" of PACER, it is probably that they are or will be offset in the immediate future
by the substantial costs associated with operating a "pay-per-view" system, as well as by the
enormous direct and indirect costs borne by the public because of policies that restrict open access
to aggregate data.
Many costs associated with access to court records are apparently already recovered through filing
and other fees charged to litigants. See, e.g., 28 U.S.C. § 101, et seq.
Imposition of user fees for remote access to court electronic records are inconsistent with
technological efficiencies inherent in displaying and distributing documents on judicial web sites.
These technological efficiencies by themselves call into question the economic basis for continued
imposition of any ongoing fees for remote public access, especially payment of 7¢ per page to view,
download, or print about 54 lines of text. For this same reason, the Judicial Conference's assertion
that existing user fees represent a savings over the current 50¢ per page photocopy charge misses the
mark. The marginal cost of displaying and redisplaying electronic court records on judicial web sites
is extremely low, and differs significantly from the relatively high marginal cost of duplicating hard
copies of individual documents. See Carl Shapiro and Hal R. Varian, Information Rules: A Strategic
Guide to the Network Economy 1-81 (1999). In sum, the quantitative and qualitative benefits of
utilizing the Internet should accrue not only to the federal judiciary, but also to the public it serves
and the taxpayers who fund its operations. See, e.g., Report to Congress on the Optimal Utilization
of Judicial Resources (Administrative Office of the U.S. Courts, February 2000)
http://www.uscourts.gov/optimal00/optimal2000.pdf.)
Web sites maintained by Federal Executive branch agencies and certain state courts demonstrate that
free access to government web sites containing vital public records is a workable, beneficial, and
reasonable approach. Florida, for example, operates a web site that provides unlimited, free Internet
access to public court calendars, lists of cases, litigation documents, judicial opinions, and streaming
video of complete appellate arguments (www.flcourts.org). Similarly, federal agencies, such as the
U.S. Patent and Trademark Office, provide unrestricted, no cost access to enormous numbers of
continuously updated records on a fully searchable, state-of-the-art web site (www.uspto.gov).
Imposition of user fees for remote public access to court electronic records appears to be
discretionary, not mandatory, and should be based upon the reasonableness of such fees under the
circumstances. See, e.g.,, 28 U.S.C. §§ 612, et seq.; see also The Federal Courts Improvement Act
of 2000, Pub. L. No. 106-518 (signed into law on Nov. 13, 2000) and its applicable legislative
history (S.2915) <http://thomas.loc.gov/cgi-bin/bdquery/z?d106:SN02915>. At least one report
previously released by the Administrative Office of the U.S. Courts appears to overstate
Congressional authorization of user fees for remote access to electronic records. See Electronic Case
Files in the Federal Courts: A Preliminary Examination of Goals, Issues, and the Road Ahead -
Discussion Draft (Administrative Office of the United States Courts, March 1997) at 32 n.45, 32-35
(Congress has already determined that fees should be charged for "read-only" remote electronic
access to court information. (Emphasis added) (citing The Judiciary Appropriations Act, 1991 Pub.
L. No. 101-515, § 404, 104 Stat. 2101, 2129, 2132-33 (1990); The Judiciary Appropriations Act,
1992, Pub. L. No. 102-140, § 303, 105 Stat. 782, 807, 810 (1991); Judicial Amendments Act of
1994, Pub. L. No. 103-420, § 2(2), (4), 108 Stat. 4343 (amending 28 U.S.C. § 612 to require deposit
of electronic public access fees in what is now known as the Judiciary Information Technology
Fund)). Cf. H.R. 1752, Bill Summary and Status for the 106th Congress (Judicial Improvements
Act of 2000, Title I: Judicial Financial Administration: "(Sec. 110) Authorizes the Judicial
Conference to prescribe reasonable fees for use of information technology resources provided by the
judiciary to improve the efficiency of access to the courts"). Testimony before Congress on behalf
of the Administrative Office of United States Courts contains frank admissions that the system
currently providing public access to federal court electronic records is "self-funding," although it is
far from clear that this is an appropriate or necessary mechanism through which information essential
to the health and safety interests of American citizens should be provided. In any event, the exercise
of discretion to restrict remote access to court electronic records or to impose excessive user fees
without a reasonable economic basis to do so may contravene not only the letter and spirit of relevant
legislation, but also interferes with presumptive rights of public access under the common law and
the First Amendment.
Existing Statutes, Rules, and Regulations Provide Adequate Protection for Privacy and
Confidentiality, and New Restrictions Based Upon Novel Application of the "Practical
Obscurity"Doctrine are Unwarranted
The Judicial Conference has acknowledged that the paper versions of case files have long been
presumed to be open for public inspection and copying unless sealed by court order, but is
nevertheless studying "the privacy and security implications of vastly wider public access" to court
records stored on computerized databases (www.uscourts.gov/privacyn.pdf).
As possible justification for curtailing public access, the Judicial Conference notes that case files can
contain private or sensitive information "such as medical records, employment records, detailed
financial information, tax returns, Social Security numbers and other personal identifying
information." By the same token, but unmentioned in the Request for Comment, court records also
contain information of indisputable public interest, including cases about aircraft safety; defective
tires, medication, baby food, toys; tax, stock, and election fraud; insurance scams; toxic waste
dumping; perjury by government officials; illegal arms deals; bank failures; antitrust claims; and
civil rights violations.
Accompanying the Request for Comment, the Judicial Conference also released a nine page "staff
report" entitled "Privacy and Access to Electronic Case Files in the Federal Courts" ("Staff Report")
(www.uscourts.gov/privacyn.htm). The centerpiece of this report is an analysis of case law justifying
suppression of private or sensitive information contained in public court files. Because
indiscriminate disclosure of this data in "the new electronic environment" may violate an individual's
right to privacy, interfere with fair trials, or impede law enforcement efforts, the Staff Report
suggests that presumptive rights of access dating back to the founding of the Republic may be
trumped by other interests. Cf. William H. Rehnquist, Is An Expanded Right to Privacy Consistent
With Fair and Effective Law Enforcement? Or: Privacy, You've Come a Long Way, Baby, 23 Kan.
L. Rev. 1 (1974).
The Staff Report cites in passing a controlling Supreme Court case, but otherwise fails to discuss the
well-established two part inquiry for identifying traditionally protected rights of access under the
First Amendment. See Press-Enterprise Co. v. Superior Court of Cal., 478 U.S. 1, 8 (1986)
("Press-Enterprise II"); El Vocero De Puerto Rico v. Puerto Rico, 508 U.S. 147, 150 (1993)
("Press-Enterprise test controls question of First Amendment right to public access). The first prong
requires a historical inquiry (i.e., whether the information or records at issue had traditionally been
available to the general public at the time our Constitution was adopted). Press-Enterprise II, 478
U.S. at 8. The second prong involves a functional inquiry (whether public access plays a significant
positive role in the functioning of the particular process–e.g., the overall administration of the
criminal justice system). If the particular proceeding in question passes these tests of "experience
and logic," a qualified First Amendment right of public access attaches:
[T]he presumption may be overcome only by an overriding interest based on findings that closure
is essential to preserve higher values and is narrowly tailored to serve that interest.
Press-Enterprise II, 478 U.S. at 8-10. (citations omitted). See id. at 478 U.S. at 21 (Stevens J. and
Rehnquist J. dissenting):
[A] common-law tradition of openness at the time the First Amendment was ratified suggested an
intention and expectation on the part of the Framers and ratifiers that those proceedings
would remain presumptively open . . . .history matter[s] primarily for what it reveal[s] about the
intentions of the Framers and ratifiers of the First Amendment. See also Leonard W. Levy, Original
Intent and the Framers' Constitution 213 (1988) ("Original Intent"); Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 565, 583 (1980)(a qualified right of public access pursuant to the First
Amendment can arise from "unbroken, uncontradicted history" of such rights of public access and
from "common practice in America when the Constitution was adopted") (quoting; Press-Enterprise
Co. v. Superior Ct. of Cal., 464 U.S. 501, 508 (1984) ("Press-Enterprise I")).
The Staff Report also apparently bases its analysis of the relevant law upon an inapposite 1989
Supreme Court case. See United States Department of Justice v. Reporters Committee for Freedom
of the Press, 489 U.S. 749 (1989). That case involved disclosure of comprehensive personal criminal
history data compilations – rap sheets – pursuant to the federal Freedom of Information Act
("FOIA")and its enumerated exemptions. The Supreme Court held that access to information in the
possession of the Department of Justice was not required under FOIA, and reversed a lower court
ruling largely on the basis of a dissenting opinion by then-appellate judge Kenneth W. Starr. Id., 489
U.S. at 754. Cf. Staff Report at 5 ("The Freedom of Information Act (FOIA) and Privacy Act, which
are the main statutes governing public access to executive branch records, do not apply to the judicial
branch and do not govern access to case file documents") (citing 5 U.S.C. §§ 551(1)(B) & 552(f);
United States v. Frank, 864 F.2d 992, 1013 (3d Cir. 1988); Warth v. Department of Justice, 595 F.2d
521, 522-23 (9th Cir. 1979)).
Notwithstanding the above, the Staff Report relies upon dicta in the Reporters Committee for
Freedom of the Press case to suggest that a privacy interest may somehow reside in court records that
were once publicly available, but are now "practically obscure" because they have become more
difficult to locate. 489 U.S. 749. For example, the Staff Report (at 4) contains the following
quotation, noting "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." 489 U.S. at 764. Again,
however, the "practical obscurity" doctrine does not appear to be applicable to restricting access to
court records. Further application of that novel privacy theory seems limited, at best, to questions
of access, solely under FOIA, to a database of criminal records compiled and maintained under the
auspices of the Executive Branch. It is therefore neither relevant nor applicable to access issues
concerning publicly-filed court records maintained by the Judicial Branch. See Union Oil Co. of
California v. Leavell, 220 F.3d 562 (7th Cir. 2000) (Easterbrook, J.) ("What happens in the halls of
government is presumptively public business. Judges . . . issue public decisions after public
arguments based on public records. The political branches of government claim legitimacy by
election, judges by reason."). In rejecting efforts to seal a settlement agreement, the Seventh Circuit
Court of Appeals observed: "When [people] call on the courts, they must accept the openness that
goes with subsidized dispute resolution by public (and publicly accountable) officials. Judicial
proceedings are public rather than private property." Id., 220 F.3d at 568.
With respect to criminal as opposed to civil judicial records, the criminal case file options contained
in the Request for Comment include a proposal for an outright ban on extending procedures for
electronic case filing to such records ("Do not provide electronic public access") as well as an option
for partial access ("Provide limited electronic public access to criminal case files"). IRE notes that
the list of options does not include an option for unrestricted access to publicly-filed criminal case
records, even though that option would represent the status quo for access to such records under
existing law. See generally, C. Thomas Dienes, Lee Levine, Robert C. Lind, Newsgathering and the
Law 179-250 (2d ed. 1999). Appellate and trial courts have repeatedly held that presumptive First
Amendment or common law rights of access attach to court records involving: pretrial proceedings
in criminal cases; information contained in or attached to indictments; criminal complaints;
pleadings; bills of particulars; the fruits of the discovery process; suppression hearing transcripts;
bail and detention records; plea agreements; and trial and post trial records. Id.
Without downplaying legitimate concerns about the hot button issue of personal privacy and the
serious problems caused by identity theft, the Judicial Conference has not established that restricting
electronic access to court records would improve the security of personal data or reduce identity
theft, as some of the most sensitive data (not already subject to restricted disclosure) remains
available from private sector sources . See Amitai Etzioni, The Limits of Privacy 10 (1999)
("Consumers, employees, even patients and children have little protection from marketeers,
insurance companies, bankers and corporate surveillance"). In addition the Judicial Conference
recognizes (Request for Comment at 3), that Congress and the Executive Branch have quickly
responded through new laws, regulations and new or pending legislation to shield personal banking
and medical records, tax returns, and Social Security numbers from unwarranted disclosure at the
behest of the government, especially under circumstances in which disclosure may be compelled or
required.
The overall situation, then, is less dire than presented in the Request for Comment and the Staff
Report. Thousands of existing Federal, state and local statutes, rules and regulations protect private
and confidential information, and no showing has been made that these existing measures are
inadequate if properly enforced. Indeed, it appears as a general matter that the judiciary does a
laudable job of ensuring confidentiality, when and where appropriate, and successfully balances
privacy concerns with presumptive common law and First Amendment rights of access in a wide
variety of cases.
Based upon the foregoing, IRE believes that premature or drastic steps by the Judicial Conference
to limit access to court records via the Internet are unwarranted. At present, there appears to be no
reasonable (or even rational) basis for enhancing access based upon personal status (litigants and
lawyers versus the public-at-large), or for providing superior access to public court records at no cost
based upon mere physical presence at a courthouse (as opposed to remote access from an
individual's home or office via the Internet). Although the Request for Comment states that
"[e]lectronic case files . . . will be available at public computer terminals at courthouses free of
charge" (at 2), it would be unfortunate if full, open access to publicly-filed court documents were
ultimately conditioned upon first walking through metal detectors and submitting to security checks.
No. 235
2/5/01
Jeff Schrag
Publisher The Daily Events
Springfield, MO
One of the founding principles of this country was a public court system.
I firmly believe that only in extreme cases should any court proceeding or record ever be closed to
the public, and only then for a specific period of time. Democracy dies in the dark.
I urge the Judicial Conference to not restrict access to any records that are now open to the public.
If, as I suspect, the real issue here is not whether records are public but whether they are available
(or too available) on the internet, then I am in favor of keeping them off of the int net, but public at
each courthouse or facility.
I see no problem with the public needing to go to the court to view the business or the records there.
As long as all the records remain public and open, the format is somewhat irrelevant.
Please do not restrict access to any records that are now open. I believe it is the thin end of the,
wedge that would lead to too many secrets and eventually a lack of public trust in the courts.
Please contact me if you have any questions regarding this matter. I would be happy to provide any
additional information.
No. 236
12/24/00
Dexter, MI
The Court has wisely decided to permit access to proceedings via computer technology. This greatly
reduces a burden on parties in interest who may live many miles from the court house and is in the
national interest from a variety of viewpoints, including reduction in time and expense of litigation,
savings of energy due to reduced travel expense, and enhancing the efficiency and speed of litigation.
Our court system has traditionally operated with rare exception in the clear and bright light of day.
The founders of the republic abhorred secrecy in government operations and in particular the courts.
If the courts operate in secrecy, this introduces at least the specter of an unfair or possibly biased
process. If information access is restricted to a local court house it places the increasingly
geographically disseminated parties in interest, particularly in Bankruptcy cases at potentially grave
disadvantages.
The Court has proposed a modification of Rule 107 in bankruptcy cases. Specifically, it has
proposed that judges may have enhanced powers to seal documents. This is inappropriate primarily
due to the provision of the Automatic Stay under 11 USC 362. The Bankruptcy Code provides a
very special relief under 362 PROVIDED the Debtor bare his financial soul to the Court and the
world, and for very good reason: Debtors who file without complete honesty and good faith can and
have and will use the automatic stay provisions to remove and conceal goods and even with the
required complete disclosure requirements presently in place, have attempted and succeeded except
for creditors' vigilance and efforts, a job which is already far too hard with dishonest debtors (See
In Re Miller, GG-97-7706 and its related case GG-97-2073 USBankrCt WDMich) for a prime
example of this type of malfeasance where the Debtor filed the original case, used the automatic stay
to conceal assets and allowed the case to be dismissed for failure to file timely plan and schedules,
and then created a sham corporation, transferred all estate assets to the corporation and refiled
claiming no assets, but with a promise to pay 100% which has since been breached. Even with the
present level of detail required for financial disclosure, tracking such debtor's activities within the
stay is manifestly difficult. To reduce or seal such information from any who wish to know is unjust
and unfair. To require travel to a distant courthouse to see documents available expeditiously places
a potentially great burden on a creditor who is already at extreme disadvantage due to the provisions
of the automatic stay.
Therefore, Judges should not be permitted greater authority to seal court records in Title 11
proceedings than they presently have, lest it place extreme hardship on creditors and give further
advantage to unscrupulous debtors.
Likewise, requiring less information on plans and schedules reduces the ability of the Court,
Trustees, and parties in interest to ascertain the true status of a debtor, and thus further enhances the
likelihood that the Bankruptcy Code will be further abused as it has been in the above referenced
case and others like it to the harm of creditors. The present burden on the Debtor is not great and
does provide adequate information to determine the truthfulness and honesty of the Debtor and any
less will undermine this ability.
Restriction of the use of account numbers to the last four digits and other account numbers does
indeed have some merit, particularly in this day and age of overseas fraud. And this is one area
where on-line access limitations might be somewhat restricted. However, this must be balanced with
the parties-in-interest need to know this information should a Debtor be dismissed and Judgement
creditors need to know this information timely in order to prevent Debtors from absconding
immediately following the dismissal, which would result unequal treatment of creditors contrary to
the Bankruptcy Code.
Parties-in-interest must have complete and comprehensive and equal access to this information at
all steps of the way to insure the Debtor is aware that his/her default/dismissal will have certain,
speedy and predictable consequences once the stay is lifted, to help insure compliance with
a plan, even if the debtor later decides it is inconvenient to comply with his plan. The Court has
wisely decided to permit access to proceedings via computer technology. This greatly reduces a
burden on parties in interest who may live many miles from the court house and is in the national
interest from a variety of viewpoints, including reduction in time and expense of litigation, savings
of energy due to reduced travel expense, and enhancing the efficiency and speed of litigation.
Our court system has traditionally operated with rare exception in the clear and bright light of day.
The founders of the republic abhorred secrecy in government operations and in particular the courts.
If the courts operate in secrecy, this introduces at least the specter of an unfair or possibly biased
process. If information access is restricted to a local court house it places the increasingly
geographically disseminated parties in interest, particularly in Bankruptcy cases at potentially grave
disadvantages.
The Court has proposed a modification of Rule 107 in bankruptcy cases. Specifically, it has
proposed that judges may have enhanced powers to seal documents. This is inappropriate primarily
due to the provision of the Automatic Stay under 11 USC 362. The Bankruptcy Code provides a very
special relief under 362 PROVIDED the Debtor bare his financial soul to the Court and the world,
and for very good reason: Debtors who file without complete honesty and good faith can and have
and will use the automatic stay provisions to remove and conceal goods and even with the required
complete disclosure requirements presently in place. Likewise, segregation of information from the
public file, and making it available only to parties in interest serves to protect a debtor who has
invoked the Automatic Stay provisions to his advantage and the public's disadvantage. Again, the
extreme and special protection of the Debtor invoking the automatic stay demands careful and
comprehensive vigilance of the Courts, the Trustee, the Parties-in-interest and the public, lest a wiley
and deceitful Debtor abuse the provisions to garner a head start in the bankruptcy process while
placing the creditors and others behind. Congress intended for the Bankruptcy Process to be fair,
consistent, equitable and open. The only way to assure this is to insist that the rules permit free and
open examination of the Debtor.
No. 237
12/20/00
Jeffrey Keene
WBTV
Charlotte, NC
I work as an investigative producer and have for the past 12 years. I understand that there is a need
to protect some information from being readily available. However I would urge the commission to
be very cautious about putting in place too many limitations. If the specific debate is a close one,
then I believe this society will be far better served by leaning towards full disclosure. It is true that
sometimes the unscrupulous will tap into and use this information for criminal purposes. However
it is far more dangerous to our way off life for a handful of people to be making arbitrary decisions
as to what should be released and what should not. Remember the debate you are currently having
is over the availability of "PUBLIC RECORDS." They are called this for a reason. They belong to
all Americans and it is that fact that separates us from so much of the rest of the world. The public's
interest is best served by the unfettered flow of public information. Step on that and you will be
running the extreme risk of stepping on that which has made us such a great nation.
No.238
12/27/00
Colonial Beach, VA
I believe that there are two separate issues involved: 1. Do recent technological advances in
information science and communications present risks that were nonexistent when present policies
regarding disclosure of personal information were formulated? If so, should present rules regarding
the need to disclose personal information by a litigant or the policies regarding sealing of such
information be updated? When present policies were formulated, information such as social security
numbers had very little value to a stranger. However, such information currently may assist a hacker
in accessing bank accounts, credit cards, medical information, etc. thereby exposing the litigant to
risks that were not anticipated at the time such disclosures were mandated. Where it is determined
that the current conditions present additional risks, mandatory disclosure requirements and/or
policies for sealing documents should be changed to mitigate the emerging risks. 2. Do the additional
risks to "privacy" resulting from advancements in information technology justify a discriminatory
policy with regard to access to public records? Entities that are wealthy enough to engage an
investigator to view the records in person have always had access to public records. It is specious
to suggest that such economic discrimination, as time-honored a tradition as it may be, should be
perpetuated in the interests of protecting "privacy". Litigants who are forced to disclose personal
information into a public record have no right to privacy to protect. The issue here is clearly one of
limiting access to valuable information to those wealthy enough to afford onsite access. One of the
principles of internet and web development is fairer access to valuable information resources in order
to level the playing field between those entities with substantial resources and those with scant
resources. It is disingenuous to suggest that information should be withheld from free or inexpensive
access facilities in an effort to protect "privacy" when the identical information is available to anyone
affluent enough to afford onsite inspection.
No.239
12/28/00
Robert L. Hartley
HENDERSON DAILY WITHROW & DEVOE
Indianapolis, IN
While debate will continue, it seems clear that: 1. Unlimited public electronic access to everything
filed will ultimately be deemed unacceptable.
2. No public electronic access to court filings will be equally unacceptable.
Therefore, the issues to be resolved will be 1) identifying information that
should not be public and 2) allocating gatekeeper responsibility. I respectfully suggest a triage system
that will minimize the administrative burden on the courts. Information is cast into three categories:
Category 1 information is deemed confidential by default (the test for this information is that every
reasonable person would want such information about themselves not to be public); Category 2
information is deemed confidential at the election of the profferer of the information (the test for this
information is that many reasonable persons, but not all, would want such information about
themselves not to be public); Category 3 information is everything else.
For Category 1 information it will be necessary to: A. Enumerate or list it by category or type (e.g.
SSN, financial account numbers, etc.); B. When such information is required to be filed, provide
separate filing forms on which to segregate Category 1 information; C. Notify litigants that if they
put Category 1 information on any filing other than the specifically provided forms, it will become
public; D. Saddling the Bar with the responsibility not to include Category 1 information in any
filing other than the specifically provided forms without the consent of the owner of the information.
E. Allow members of the Bar involved in the case appropriate access Category 1 information with
the requirement it be kept confidential. For Category 2 information, it will be necessary to: A.
Enumerate or list it by category or type (e.g. income, medical information, etc.); B. Require the
profferer in order to elect confidentiality, to submit the information separately and appropriately
designated; C. Require the profferer to submit a public filing containing notice that a confidential
filing was made and identifying the category or type of information contained therein. This is
necessary to allow the opportunity for others to object and have the information improperly
designated as confidential to be unshielded by the court. D. Allow members of the Bar involved in
the case appropriate access to the information with the requirement it be kept confidential. For
Category 3 information, it would seem that the profferer must, as we do today, seek from the court
the specific relief of "sealing" such information. Unless the above "triage" of information is adopted,
there remains (after accepting the proposition that some information contained in court filings must
be kept confidential) only two alternatives. One is to allow the profferer to designate anything
confidential subject to objection. This would likely pose an undue administrative burden on the
court, since the ability to designate anything confidential would likely create abuse of such
designation and drag the courts into many disputes over whether information had been properly
designated as confidential. The other alternative is to require the profferer to seek a ruling from the
court whenever confidentiality is requested. Again, this would likely pose an undue administrative
burden on the court. The above triage presents procedures which allow for reasonable confidentiality
without undue administrative burden on the courts, except for the initial problem of enumerating
Category 1 and Category 2 information. The above triage places the initial gatekeeper responsibility
in all cases on the profferer of the information, where it belongs. At the same time, it allows
correction by the court, with minimal administrative burden, when information may have wrongly
been designated confidential. Obviously, it would highly beneficial if there were a nationally uniform
designation of Category 1 and Category 2 information, even if there are local variations in
procedures to protect it.
No. 240
2/9/01
United States Department of Justice
Washington, DC
I am pleased to enclose the comments of the Department of Justice in response to the federal
judiciary's request for comments regarding the privacy and security implications of public access to
electronic case files. The issue of privacy and public access to electronic case files is very important
to the Department of Justice, as we know it is to the judiciary. We welcome the opportunity to
continue the productive dialogue regarding these issues on an ongoing basis.
I would like to take this opportunity again to thank the Judicial Conference for allowing the
Department an extension of time to produce these comments. As you know this has been, and
remains, a period of transition for the Department. However, these comments represent the joint
efforts of a working group of attorneys from a variety of components of the Department of Justice,
including the Executive Office for United States Attorneys, the United States Trustee Program, the
Office of Information and Privacy, the Fraud and Computer Crimes and Intellectual Property
Sections of the Criminal Division, the Commercial Litigation, Federal Programs, and Torts Branches
of the Civil Division, the Tax Division, the Federal Bureau of Investigation, the Environment and
Natural Resources Division, the Justice Management Division, and the Office of Policy
Development. With the appointment of the new Attorney General, the Department will be returning
to full force at the leadership levels. We look forward to providing further thoughts and input,
whether in the form of continued communication between our staffs or more formal testimony.
If you have any questions regarding this document, please do not hesitate to call Jonathan Meyer,
Deputy Assistant Attorney General in the Office of Policy Development (202-307-3024), or Jeanette
Plante, Special Assistant United States Attorney (202-616-6459). Thank you again for the
opportunity to comment.
Sincerely,
/S/
Kevin R. Jones
Deputy Assistant Attorney General
COMMENTS REGARDING THE PRIVACY AND SECURITY IMPLICATIONS OF PUBLIC
ACCESS TO ELECTRONIC CASE FILES
I. Introduction
With the rapid growth and development of the Internet and related software, we now have the tools
to communicate at a pace and in a manner not previously envisioned. These electronic tools
dramatically alter both the fundamental nature of communication in litigation and the substantive
development, interpretation, and enforcement of new policies and needed protections that arise with
increasing electronic capabilities. The transition to Case Management /Electronic Case Filing
(CM/ECF) raises many new and challenging policy issues, particularly on the proper balance to
strike between public access and privacy rights.
Open, remote, and anonymous electronic access to case file information has profound and
unparalleled implications for the judiciary. The judiciary is the trusted custodian of a wide variety
of case files that include highly sensitive data such as national security information, information
about criminal activity and investigations, or intimate details about human lives. The problems
associated with management of this information are complex and will require that the Judicial
Conference give serious consideration to the judiciary's role in managing and protecting this
information. Simply substituting an electronic system for a paper system without undertaking careful
planning with all interested parties will not take into account the important differences between
traditional and electronic processes.
The Judicial Conference, through the development of the CM/ECF, has made great progress in
identifying and addressing issues related to electronic communication of court file information
among users. As part of that development, the Committee on Automation and Technology has asked
for comment on the CM/ECF privacy and security implications of public access through the court
website to case file information, comment on policy alternatives, and comment on the appropriate
scope of judicial branch action in this area of privacy and security for court filings.
The Department of Justice views this request for comment as a critical step in an ongoing process
of change. Short range, the issues are conditioned by existing paper files and their supporting rules
and processes. The development of electronic tools for communication is now in the process of
changing that paradigm. Long range, documents and pages will give way to information and
encodings. The encodings, which may be XML taggings or some as yet undeveloped software
capability, will operate with pieces of information and information display, rather than with
documents as a whole. The courts and the executive agencies must start examining the future of
information and encodings while simultaneously addressing short-range issues related to documents
and pages. Coordinating analyses and responses to these issues will benefit the public and all
involved in the administration of justice. We commend the judiciary on identifying the important
problem of balancing the vital interests in confidentiality with access to electronic court files.
Specifically, the Department believes that the Judicial Conference should consider short-range and
long-range strategies that are appropriate in the context of their respective times, with the
anticipation that these strategies might be different. In fact, the Department of Justice suggests a
specific short-range strategy for the next few years, discussed at greater length in Sections IV. B. and
V., which will effectively continue existing access and may or may not be what we would suggest
a decade hence. Under any circumstances, given our mission of the administration of justice and
enforcement of the laws, all policies, both short and long range, should aim to allow governmental
entities and law enforcement the same access to case information that is currently available.
II. The Department of Justice Perspective
The Department of Justice brings a very broad perspective to this debate because it encounters issues
related to both the privacy and security of case-related information and public access to court
information in several contexts:
First, as part of its law enforcement and other missions, during the investigative and litigation phases
of a case the Department often handles information created and communicated by others that is
protected from disclosure or has privacy implications when handled in contexts other than litigation.
For example, the Department routinely processes grand jury information; investigative materials;
trade secrets and other confidential business information; physical and mental health records,
personal financial and other business records; government procurement materials; taxpayer
information; proprietary information; and bankruptcy and other business records such as investment
strategies and financial records. The Department is firmly committed to the appropriate protection
of these materials from unwarranted public disclosure, but equally committed to allowing
appropriate access for parties in interest, their counsel and governmental entities as well as law
enforcement.
Second, the Department generates original court filings that have privacy implications. For example,
pleadings, briefs, subpoenas, warrants, and other documents prepared by Department of Justice
attorneys may contain personal information that in some instances might be considered sensitive,
such as names, addresses, telephone numbers, Social Security numbers, and employment, medical
or psychiatric histories. Case files may also contain parties' settlement positions which are routinely
confidential between the submitting party and the court, and not available to other parties. Indeed,
in some circumstances, even people's names might be considered too sensitive to be disclosed
widely, such as the names of victims of certain types of crimes. In criminal cases in particular, some
case file information may relate to grand jury materials, unexecuted warrants, plea agreements, or
victim witness information for which there are clear needs for protection from disclosure to the
general public.
Third, the Department plays an affirmative role in litigating cases involving the protection of
personal privacy. In the Civil Rights arena and in cases involving Privacy Act violations, the
Department of Justice is frequently called upon to protect privacy interests of litigants.
Fourth, the Department prosecutes "cybercrime" or "hacker" cases that involve unauthorized
intrusions into computer systems or unauthorized alteration of data stored in those systems as well
as cases involving identity theft. Identity theft is the use or transfer, without lawful authority, of
means of identification of another with intent to commit unlawful activity. Examples of other types
of cases that may fall within this general category include creditcard fraud and cyberstalking cases.
To the extent court files are made available to the public electronically, they may become targets for
those who wish to attack the confidentiality, integrity, or availability of that information.
Finally, the Department of Justice supports the public interest in appropriate public access to court
records and the judicial system. Many cases that the Department of Justice litigates are brought to
promote the public welfare, the environment, or consumer rights, and benefit from public availability
of case information.
As a result of this variety of uses and needs for the information typically contained in court case files,
the Department of Justice has a number of very distinct interests in the electronic availability of the
information on the CM/ECF system: records access that facilitates DOJ mission performance;
records protections that implement all applicable laws and policies; consistency with other federal
government activities dealing with the same or similar issues; and fairly representing the public
interest in an appropriate balance between public access and privacy.
III. The Inherent Tension Between Public Access and Privacy
The capability of open electronic access to all case file information, remotely and anonymously
accessible by anyone at anytime, has far reaching implications for the justice system. While there
has always been inherent tension between the need for public access to certain litigation materials
and the need to protect private or sensitive information, the judiciary has made informed decisions
about what should be released and to whom, with appropriate tools in place to implement those
decisions.
Historically, a common law right has existed "to inspect and copy public records and documents,
including judicial records and documents" Nixon v. Warner Communications Inc., 435 U.S. 589
(1978). Court records are presumptively open to the public for the express purpose of assuring that
the public can monitor the integrity of the judicial system. That right is not to complete and
unfettered access, but is a rebuttable presumption of openness. In the cases that discuss the right to
public access, there is no declaration that access must be provided with state-of-the-art tools. Instead,
the message is that where there is a determination that information should be available for review,
access to the information should be provided.
Because new technology eliminates the built-in safeguards that have evolved over time in a paper
system, the natural tension between the need for public access to case information and the need to
protect certain case information has escalated dramatically. In the paper world, anyone seeking case
file information must appear at the courthouse in person, request a file, in some instances sign for
the file, and return the file intact. In addition to the practical limitations associated with this kind
of one-on-one communication, certain inherent characteristics of a paper system cannot be
minimized. Only one person at a time may handle the file, the requestor is at least seen and may sign
for the information, further dissemination requires manual photocopying either by the requestor or
court staff, and paper files simply are not as easily compiled, searched, and analyzed as electronic
files. Furthermore, people who go to the sometimes extraordinary lengths required to get the
documents are typically those with concrete interest in the litigation. Finally, some identifying
information like fingerprints on a paper file, a signature on a sign out sheet, or a witness description
may be retained in the event any improper use of information prompts investigation.
In this paper system of communication, there are also established, additional "tools" available to
protect information from disclosure where there has been a legal or policy determination that
information must be protected. For example, the Federal Rules of Criminal Procedure protect certain
types of information at the outset and motions to seal allow parties to ask that certain sensitive
information be protected from dissemination. A body of case law has developed to support sealing
various types of information in criminal and civil cases.
In contrast, in the digital world current software capabilities, combined with the widespread use of
the Internet, can allow any number of individuals to search and download numerous files, remotely
and anonymously, and allow forwarding to multiple sites in minutes. While there are clear
advantages to the justice system with some of these new capabilities, there may also be clear
disadvantages. Differences in paper versus electronic system capabilities cannot be ignored when
considering privacy and security implications for electronic access. Merely substituting an electronic
system for a paper system without undertaking a business process analysis, i.e., a thorough analysis
of how and why litigation files are created, used, transferred or stored from all the various users'
perspectives, along with the policy implications, ignores the inherent differences between paper and
electronic communication.
IV. Department of Justice Comments:
A. The Role of the Judiciary
The Judicial Conference efforts to gather information and examine these issues is the natural
continuation of its longstanding role as the policy-making body for the federal courts in managing
conflicting needs of public access and privacy. As the policy making body for the federal courts, the
custodian of all case files for the judicial branch, and the systems developer of the CM/ECF system,
the judiciary must continue to play a prominent role in examining and developing underlying policies
for privacy and security of electronic case files that will affect access to those files and future
systems development.
The approach to determining this policy should include the development of a vision for the use of
the technology tools that expands beyond mere ease of use or records management, to maximizing
the benefits of technology for all users--the judiciary, parties and their counsel, governmental entities
and the general public-- while balancing the needs of public access with privacy concerns in the
administration of justice. There are obvious benefits for all who participate in the justice system to
finding and reading public documents over the Internet without physically going to a courthouse to
obtain them. On the other hand, there are, and always have been, recognized concerns about the
availability of case information.
The Judicial Conference should undertake a thorough analysis of objectives, constraints, and costs
of access to case files and develop the underlying policies now that will allow systems development
with necessary protections while enhancing the justice system. Once it develops an articulated vision
with respect to the use of technology and its enhancement of the justice system for all users, the
Judicial Conference must analyze the nature and content of case files and the appropriate
dissemination of that information. That analysis should also take into account the federal records
implications for case files, and the differences between the privacy and security aspects of cases that
are in process versus those that are concluded and on their way to the National Archives.
This analysis may take a variety of forms, including seeking public comment as the Judicial
Conference has done here. We recommend that the analysis include identifying: the minimum
information necessary to satisfy public access needs; certain types of information that have
traditionally enjoyed privacy protections like social security numbers, proprietary and trade secret
information, taxpayer information or grand jury material; and governmental and law enforcement
needs for the information. We encourage the Judicial Conference to determine what, if any,
information deserves special protections and what information should always be available, by what
means and to whom.
In conducting or commissioning the necessary thorough analysis of these issues, the Judicial
Conference should focus on case information flow and risk factors related directly to concerns
expressed in these comments. These kinds of analyses, traditionally used in the business world
when converting from paper to electronic systems, can provide the judiciary with the necessary
underlying information on which to base judgments and policies concerning public access and
system development.
We caution strongly against proceeding to implement a system without carefully considering and
addressing the vital privacy and public access interests that are involved. Although we believe that
these interests can be reconciled, doing so may require careful analysis that is highly attentive to
particular situations and interests, and a substantial effort in process design and corresponding
technological investments. The result of this type of review will likely be that wide scale
implementation of CM/ECF will require a combination of rules, policies, legislation and systems
development in order to maximize the benefits of these technology tools for all users while balancing
the interests of public access with those of privacy
B. Comments on Proposed Policy Alternatives
In its request for public comment, the Judicial Conference enumerated several alternative proposals
in order to generate discussion about options in this area. The Department of Justice reiterates its
recommendation for a long range planning process.
The following comments address the various proposals enumerated in the request for public
comment. They are followed by comments on both specific types of information that may require
certain heightened protections, and comments on business uses and access needs for governmental
entities and law enforcement. Finally, we have provided a list of precautions to consider when
evaluating issues in this area. For the purposes of responding to the proposals in the request for
comment, we interpret electronic access to mean the current concept of remote, Internet-based access
to information. As discussed above, other forms of electronic access could exist. We hope that these
comments will contribute to the overall discussion on these very important issues.
Civil Cases
1. Maintain the presumption that all filed documents that are not sealed are available both at the
courthouse and electronically. While on the surface this alternative appears to promote treating
paper documents and electronic documents in the same way, this alternative does not take into
account inherent differences between paper and electronic communications systems. In fact, because
of the inherent characteristics of a paper system, and the expanded communication capability in a
remotely accessible electronic system, simply substituting Internet access for paper without analysis
of the real impact and building in appropriate safeguards effectively results in inconsistent treatment
of the same information. While the Department of Justice favors approaches that promote openness,
this approach even in the short term neither maintains the status quo nor provides a long-term
solution. Also, for the reasons stated in footnote 2, we strongly disagree with using the traditional
mechanisms of "sealing" documents to address the privacy concerns implicated by electronic access
to civil cases.
2. Define what documents should be included in the "public file" and thereby available to the public
either at the courthouse or electronically. The Department agrees that, in the long-term, public
information in a case file should be available to the public regardless of the technology used to create
or store the information, and the public should be able to take appropriate advantage of technological
advances to access it. The underlying question of what information (we do not refer to "documents,"
because information will not necessarily reside in documents) should be publicly available will
involve an extended public policy debate about the nature of the U.S. court system, public records,
and privacy in an electronic age. Implementation of this alternative is not a simple process. For
example, if a different balance between privacy and public access is drawn than current law provides,
statutory changes may be required. It may also be necessary to design specific standards and
technologies to distinguish public and private information within a particular document and to allow
public information to be disclosed while maintaining the confidentiality of other information.
3. Establish "levels of access" to certain electronic case file information.
The Department supports this concept as an interim approach. For example, the Judicial Conference
could provide enough basic case information on the public website to assist public users in
determining whether to obtain further information from the courthouse file while allowing certain
pre-approved persons (such as parties, their counsel, and law enforcement) access to the full
electronic file. The "public file" should contain at a minimum, for example, the names of the parties
and their counsel, the case number and the docket entries, and any other statutorily mandated
information. This alternative would provide the most reasonable interim approach because it would
continue to allow full access at the courthouse, yet begin to take advantage of the benefits of remote
access. In addition, by providing "levels of access" during this interim period of analysis, as a
practical matter the judiciary, all users and the system developers gain the benefit of actual testing
of the system. The administrators of the system, however, should take particular care with regard
to security in implementing this proposal. A system that provides levels of access could prove
particularly vulnerable to abuse by outside individuals seeking to gain access to information from
which they are prohibited, since that information would be available on the system to some people
but not others.
Finally, the Judicial Conference should consider the federal records aspects of case files, and the role
and actions of the National Archives and Records Administration. The courts might wish to pursue
a strategy that differentiates among cases in progress, cases that are concluded but whose files are
still in the courts' custody, and concluded case files that are transferred to the National Archives.
The burden of electronic access to case files of concluded cases might be shifted to or shared with
the National Archives.
4. Seek an amendment to one or more of the Federal Rules of Civil Procedure to account for privacy
and security interests. This alternative is premature for other than a "levels of access" approach.
Beyond allowing for certain levels of access to electronic case files, any rule would require the same
kind of analysis as that recommended above before there could be a sufficient determination of what
the rule would control. Certainly at some point, there will likely be a need for amendments to the
Federal Rules of Civil Procedure to implement whatever decisions are made about what should be
available and to whom.
Criminal Case Files
1. Do not provide electronic access to criminal case files.
See response to Criminal Case Files proposal number two below.
2. Provide limited electronic access to criminal case files.
When considering these two proposed options, the Judicial Conference should take into account the
characteristics of criminal case files. Even when not filed under seal, criminal case files often
contain sensitive information. A typical file may include victim/witness information, information
that may identify the existence of investigations or informants, plea agreements that identify the
cooperation of one or more defendants, grand jury material or tax information. Sealed criminal
matters and case files may contain any or all of the above as well as wiretaps, sealed indictments,
search warrant applications, applications for trap and trace or pen register orders and names of
juvenile victims protected by the Victim/Witness Protection Act.
The potential for harm to individuals or to criminal investigations and prosecutions by widespread
dissemination of this type of information cannot be minimized. Thus, the analysis of what is
available to satisfy requirements for public access must be carefully balanced against the potential
for consequences far more serious than mere dissemination of private material. The Judicial
Conference must consider the unintended consequences of setting up a system of unfettered remote
electronic public access to criminal case files. With respect to any system of escalating privileges,
whether password-based or otherwise configured, it must be assumed that unauthorized individuals
will obtain escalated privileges. Accordingly, any decisions with respect to making court records
available for remote electronic access must take into account not only ideal considerations (the
degree of access the court would like to extend to the general public) but also practical ones
(assessing the virtual certainty that any system will operate imperfectly).
It is realistic to anticipate catastrophic consequences in cases of inadvertent disclosure of certain
information in criminal cases, particularly sealed criminal matters. When significant law
enforcement operations are compromised, the loss is not only in the wasted government resources
but in the continued victimization of the community. If the identities or even the existence of
undercover agents, informants, cooperators or confidential witnesses, are disclosed, people will be
threatened, intimidated and, not infrequently, murdered. Other sensitive or secure case information
occurs in criminal cases involving national security issues where the release of that information may
result in more widespread disaster to people and communities. On the other hand, there are
compelling reasons to allow extensive access to case files to law enforcement during investigative
stages, and legitimate reasons for allowing the general public access to basic or "core" information
for purposes of monitoring the criminal justice system.
Bankruptcy Case Files
Full disclosure of debtors' financial and personal data – such as bank and credit card accounts, social
security numbers, income sources, and medical and other expenses – is essential to deter fraud and
enable creditors to recoup their fair share of available non-exempt assets. However, technological
advances now allow sensitive personal and financial debtor data to be obtained by means never
contemplated by the Bankruptcy Code and for purposes that bear no relation to pending bankruptcy
proceedings. For example, it is now possible to engage in nationwide "data trolling" via Internet for
virtually any information stored in unsecured databases.
In recognition of the impact of technology on the competing needs for public access and privacy
protection, the Departments of Justice and Treasury and the Office of Management and Budget ("the
Study Agencies") recently conducted a study of financial privacy issues in bankruptcy which makes
recommendations related to public access to bankruptcy court files as reflected on the USTP website
www.usdoj.gov/ust/privacy/privacy.htm. Some of the principles discussed in these comments are
also applicable to civil case files (e.g., Segregating certain information from the public file).
1. Seek an amendment to section 107 of the Bankruptcy Code.
Amendments may well be needed, and should be explored, in order to achieve the proper balance
between public access and privacy protection. Close coordination between the judicial and executive
Branches is particularly important, given the need to consider law enforcement interests and other
public policy concerns in balancing the competing interests of access and privacy, including the
possible need to seek analogous legislative amendments.
2. Require less information on petitions or schedules and statements filed in bankruptcy cases.
The financial information that debtors most disclose in bankruptcy cases is the product of a long
history and careful deliberation by the judiciary and Congress. Any decision toward reducing the
amount of information, or eliminating certain elements, should be made with caution and only after
careful consideration of how a specific change will affect the bankruptcy process, and only with
safeguards to assure that a change will not invite fraud and abuse.
As opposed to changes in the amount and character of financial information required, the
Department of Justice suggests that access to sensitive personal/financial information be limited to
those directly involved with a case, such as creditors and parties-in-interest (subject to re-use and
re-dissemination restrictions), as well as estate trustees and governmental entities.
3. Restrict use of Social Security, credit card, and other account numbers to only the last four digits
to protect privacy and security interests.
Less information should not be required, and a reduction in the amount of data required of debtors
could invite fraud and abuse. Rather, access to sensitive personal/financial information should be
limited to those directly involved with a case, such as creditors and parties-in-interest (subject to
re-use and re-dissemination restrictions), as well as estate trustees and governmental entities.
4. Segregate certain sensitive information from the public file by collecting it on separate forms that
will be protected from unlimited public access and made available only to the courts, the U.S.
Trustee, and to parties-in-interest.
The presumption should be that public access, whether manual or electronic, extends to all "core"
documents relevant to understanding and monitoring judicial proceedings. Sensitive personal and
financial information (e.g., Social Security numbers, account numbers, tax information, mothers'
maiden name, etc.) should be deemed "non-core" data – without the need to obtain an order sealing
such materials on a case by case basis – in view of the damage that could result from such material's
misuse. Consequently, access to such sensitive non-core data should be limited to creditors, litigants
and other parties-in-interest directly involved in the case (subject to re-use and re-disclosure
limitations), as well as estate trustees and governmental entities.
Establishing "levels of access" could certainly be one means by which to limit access to sensitive
non-core information to authorized parties. However, at least until the day when all court filings are
electronic, analogous mechanisms should also be established to limit manual access to non-core data
in paper files, possibly by redesigning forms to keep sensitive personal/financial information together
in a separate part of the docket.
Appellate Cases
1. Apply the same access rules to appellate courts that apply at the trial court level.
The Department of Justice agrees with this recommendation.
2. Treat any document that is sealed or subject to public access restrictions at the trial court level
with the same protections at the appellate level unless and until a party challenges the restrictions
in the appellate court.
The Department of Justice agrees with this recommendation.
V. Input into process analysis:
In the long-range, we recommend that the Judicial Conference establish a commission or similar
effort to define the issues, propose a vision, recommend policies, and suggest mechanisms to change
existing processes and build new processes. This analysis should include, but not be limited to,
understanding objectives, constraints, costs and benefits of case information flow and risk factors.
It should also include analysis of the benefits and drawbacks for each of the following alternatives,
along with other viable options: (1) maintaining the status quo; (2) local electronic access, i.e. access
only by use of terminals at the courthouse; (3) limited electronic access with user registration and
password; (4) Internet access with different levels of access; (5) Internet access to only certain
categories of information; (6) Internet access in which the format provided would be restrictive, i.e.
viewing and printing only whole pages; and (7) full Internet access in the context of current and
projected technology capability.
We believe that while the Judicial Conference continues to study these issues it should at least
maintain the status quo with respect to information contained in case files at the courthouse. In other
words, there should be an interim or short term plan that allows what case file information is now
available to the public at the courthouse to continue to be available to the public at the courthouse
(whether the files are electronic or paper) with remote electronic access allowed for parties, their
attorneys and governmental entities and law enforcement. This type of communication would at
least mimic the paper environment. At the same time, the Judicial Conference should allow remote
public access to certain limited or "core" case information like names of the parties, case numbers
and docket entries. The Department of Justice does not recommend precluding use of the electronic
systems completely pending specific policy and technical development of CM/ECF because that
position would not support efforts to maximize the use of the technology. Moreover, not allowing
any remote electronic access in the short term would also preclude the judiciary and other users from
gaining valuable experience with the use of these tools.
The approach we recommend would establish new safeguards to ensure that access is equivalent in
practice to that available now, but does not become so broad as to harm confidentiality and privacy
interests. For example, the system could prevent the ready electronic manipulation of discrete
information items contained within a page. Users might be able only to view and print whole pages.
Publication might be inhibited and alteration made difficult and detectable. If human document
viewers want to capture discrete information items, they would have to do so in an equivalent way
to what is involved today with paper documents. The principle would index case files at the
document level, not at the information item level. This is the specific short-range strategy mentioned
above. A scenario for its specific implementation is presented in Attachment A.
Finally, we urge the Judicial Conference to recognize that as long as the same information that has
always been available at the courthouse is still available at the courthouse, any decision to delay or
limit remote electronic access through CM/ECF pending further analysis and policy development
does not amount to a reduction in public access. With this premise in mind, the Judicial Conference
should err on the side of limiting remote public access to electronic files until the thorough
functional requirements analysis recommended above is complete.
Some of the issues we recommend for inclusion in the analysis follow.
A. Record Access that facilitates DOJ mission performance
1. Law Enforcement-
Foremost among the Department of Justice's missions is the well being of all Americans and the
enforcement of the nation's laws. Access to criminal case files is crucial to the Department's law
enforcement mission and serves a wide range of valuable public and private sector functions. Law
enforcement agencies frequently use an array of records databases to verify identities, detect fraud,
track down criminals, and locate assets.
Any proposal regarding privacy and electronic public access to court files should state in clear and
unambiguous language that not only is electronic access to information contained in court files
needed by federal, state and local law enforcement, but that such access is entirely appropriate. In
fact, since the primary focus of the Department is enforcement - civil, criminal and regulatory -
clearly the Department, as well as the entire law enforcement community, must have access to the
wealth of information contained in court filings. If any proposal restricting electronic public access
to court files diminishes law enforcement's access to those same records, specific measures must be
crafted to ensure that law enforcement has continued access to those records.
2. Administration of Justice
Another critical element of the Department's mission is the support of the federal justice system.
Support of the justice system is multifaceted. It requires that all litigants and other participants in
the judicial system provide information required by law, have access to information necessary to
protect their interests so that cases can proceed expeditiously, that applicable requirements of
confidentiality are protected, and that judicial decisions are based on admissible evidence. It also
means that the operations of the justice system are open to the public, and that the public has
confidence in the integrity and fairness of its courts.
A. Access by parties and their counsel - Parties and their counsel have a clear and unambiguous
need for documents and pleadings filed in their cases. In addition to service requirements under the
federal rules, the traditional notion of the fair administration of justice requires that parties be
provided information about claims against them and all responses thereto. Considerations of counsel
range from the ethical obligation to represent clients fully to the need to determine case strategy, to
the underlying information that is necessary to prepare appropriate responses to pleadings or court
orders, to standard business and ethical requirements that impose record retention obligations. Given
a vision that contemplates maximizing the use of the technology, and the Department of Justice
analysis of the impact of CM/ECF on its attorneys, electronic access will ultimately streamline the
process of communication and potentially provide more efficient, less costly communication of
critical information.
B. Access by Executive Agencies- While executive agencies may be or become parties to cases
underway in the Federal Courts and thus, gain remote access privileges, these privileges must be
defined and implemented. For example, the Department of Justice represents the Social Security
Administration in litigation arising out of claims for Supplemental Security Income and Disability
Benefits. In these cases, the Department of Justice attorney has access to the case files. The SSA
has requested that its administrative transcript not be posted on the Internet because of concerns
about identity theft and the sensitivity of the information contained in the files.
Nonetheless, the SSA has some need to access the information to carry out its mission. The SSA
requires access to documents in court files in those cases where it is not the counsel of record in
order to facilitate the payment of benefits ordered by the courts and otherwise comply with court
orders. At times, the content of other court papers filed on behalf of the parties may be instructive
regarding the meaning of court orders and access to this information would also be useful. This
provides one example of the need to consider how to allow access for counsel and parties,
particularly large governmental or corporate parties to an action.
C. Access by the public - In addition to the traditional, common law and constitutional principles that
support allowing public access to case file information for purposes of monitoring the functioning
of the courts and the legal system, there are other considerations that support public access. For
example, citizens have a strong interest in knowing what is happening in their communities, who
may be causing environmental (and in some cases health) hazards, and complainants or victims have
an interest in knowing how a case is proceeding. In criminal cases, the private sector may use public
record information to perform cost-effective due diligence on individuals and entities to prevent
fraud, perform background checks and serve other legitimate business purposes. The press has long
been entitled to access to information contained in court files (with certain limitations), and this right
is fundamental to our system of government. These kinds of access needs should be considered when
determining what information should be available to whom.
In addition, when considering public access needs, the Judicial Conference should review as well
the method of access for persons with disabilities. Just as Congress has passed laws designed to
shield sensitive personal information from unwarranted disclosure, it recently passed Section 508
of the Rehabilitation Act to ensure that federal agencies make their electronic information accessible
to people with disabilities. While Section 508 does not apply to the federal courts, the underlying
principle – that electronic information should be usable by everyone entitled to use it, regardless of
disability – is important in any analysis of access needs.
For instance, scanning legal documents into an electronic format commonly results in an electronic
image file that is inaccessible to people who are blind who use screen readers. The same documents
– if they are generated electronically from the word processor instead of scanned into an image file
– can generally be made accessible to people with disabilities with little or no extra effort. People
with disabilities – including judges, attorneys, litigants, and others – will have limited access to the
court system unless the Judicial Conference requires its members to adopt simple rules of electronic
accessibility.
Finally, we urge the Judicial Conference to consider other issues that might have a negative impact
on public access. For example, there has been discussion about charging fees for public access to
CM/ECF case files. The imposition of fees would further limit public access to files because access,
tasks and services that previously were free will no longer be available without cost. This may
further serve to deter access where there is no policy determination that access should be limited.
Significantly, to the extent that counsel for parties incur costs for downloading case documents that
previously were provided to them by opposing or co-counsel under Federal Rules service
requirements, parties may now incur additional costs just to maintain their case files and litigate their
claims.
D. Access in support of bankruptcy administration- The Department, through its United States
Trustee Program, oversees the administration of one million bankruptcy cases through approximately
1600 chapter 7 trustees, and 200 standing chapter 12 and 13 trustees. The number of cases, the work
required to administer each case, and the efficiency of the bankruptcy process depends on these
trustees having ready electronic access to case information. Moreover, the Department is a
representative of government agencies that are frequent creditors in bankruptcy, including the IRS,
and those agencies would benefit from ready access to such data.
B. Records protection considerations:
1. Personal privacy interests-
There are currently dynamic and ongoing discussions in the legal, government, medical and business
communities about privacy interests and access to sensitive personal information such as physical
and mental health records, victim/witness information, and personal financial information. The
Department of Justice urges the Judicial Conference to study the wide variety of information
available relating to these issues both inside the legal system and in other contexts.
One source of information relating to the conversion of paper communications systems to electronic
communications systems is the legal guidance provided to federal agencies by the United States
Department of Justice in response to the Government Paperwork Elimination Act. The Freedom
of Information Act and the Privacy Act, while they do not apply to the judiciary, may also offer
useful guidance as the judiciary deals with these delicate privacy issues.
In addition, the Department of Justice recommends that the Judicial Conference undertake a review
of the types of cases in the federal courts that may give rise to particular privacy concerns because
of the nature of the information that is typically contained in case files. For example, at issue in
many disability rights cases is potentially-stigmatizing personal information, such as mental health
records, HIV status, etc. This information is often required as part of the case record, in order for
someone to establish that he or she is a person with a disability protected by federal civil rights laws.
Similarly, in Social Security Disability Claims cases, information relating to the claimed disability
and supporting medical and personnel records are typically included in the administrative transcripts
of the case. In bankruptcy and tax litigation, personal financial information that would be protected
in other contexts is always a part of the litigation case file. While these records may be protected
in other contexts by a matrix of federal and state laws, assertion of valid legal rights will subject
them to full public disclosure. Many people with disabilities, or with records containing sensitive
information, may well be deterred from asserting their legal rights in court if their private
information is so easily and widely available on the Internet.
Examining these various categories of cases and determining what information is commonly found
in what type of case will provide the Judicial Conference much needed input in the analysis of what
information requires protection and at what level.
2. Protection against impermissible access - While access to case files and information is essential
to the effective administration of justice, impermissible access–access that violates the rules of
procedure and evidence–can undermine the integrity of the justice system. For example, protection
of case file information from juror access during the proceedings is critical to the integrity of the jury
system. Department of Justice attorneys try many cases to juries. Most criminal prosecutions that
reach trial are jury trials and many types of government civil cases result in jury trials, like
employment discrimination cases, civil fraud cases, Bivens cases, and other types of civil cases
where the United States, even though not subject to a jury verdict, may be co-defendant with parties
who seek jury trials. In any case, where there are non-sequestered jurors, there should be concerns
about juror remote electronic access to case file information. Clearly, juror review of Motions to
Suppress, Motions for Summary Judgment, or Motions in Limine and all supporting documents and
affidavits will be detrimental to maintaining the integrity of the jury process.
In the traditional paper system, while a juror could theoretically go to the clerk of the court's office
and request case information, as a practical matter the one to one physical communication between
court staff and jurors militates against those requests. Most jurors in most courthouses come to the
courthouse for orientation, are seen by many members of the court staff throughout their tenure, and
are required to wear some kind of identifying information while in the courthouse. In addition to the
likelihood that a juror might be recognized, in many jurisdictions, anyone seeking paper case files
must sign for them. This picture changes when the electronic case file system allows for remote and
anonymous access by anyone at anytime.
C. Other governmental activities or interests:
The Department of Justice, Justice Management Division, has responsibility for systems security
issues at the Department of Justice. The judiciary's initiative on CM/ECF in general will clearly
impact DOJ systems security, particularly in the area of privacy policy.
Protecting the data that is transmitted to the Courts, stored by the Courts and made available to the
public will be a notable system security challenge for the Courts and to a lesser extent for all parties,
including DOJ, in dealing with the Courts. Generally speaking, the threats to electronic information
security are much more sophisticated than the security protections that are available and
economically feasible to implement. Particular issues that must be addressed include data integrity
(ensuring the data that is sent by a party is the data that is received by the Courts), data privacy
(ensuring that only authorized parties have access to the data) and data availability (ensuring the
Court system(s) storing the data are operating and are not attacked). The latter of the issues will be
the greatest challenge because the very effort to make data available to the public electronically
introduces risk. Likewise, the above issues apply to data that should not be made available to the
public, but which the Courts still want sent to them via electronic means (civil case information that
is sensitive or "sealed" grand jury information or other information that the judiciary deems sensitive
and restricted but still subject to distribution to selected users).
It is noteworthy that the CM/ECF initiative will have a resource impact on the Department. It
follows that any part of that initiative, including decisions with regard to how and what information
may be accessed by whom plays a part in that impact. To the extent that decisions about privacy
policies, procedures, rules and technology systems affect Department of Justice systems,
coordination with the Judicial Conference on solutions that maximize the technology while
promoting the fair administration of justice will become critical.
D. Changing privacy implications at different stages of a case:
As noted in section V.B.2., the need for protection of information contained in case files may change
depending upon the status of the case or archiving requirements. Information that might require
protection from juror access at one stage will not at another. The issue of juror access exists only as
long as the case is pending. Once the case is complete, and the jury verdict rendered, any concerns
about juror contamination are ended.
Also, by virtue of participation in litigation, certain information loses its protected status. For
example, tax return information, previously protected by statute and included in the record is no
longer confidential and in bankruptcy the submission of one's financial information is the necessary
quid pro quo for the protection of creditor's interests.
E. Stakeholders in the CM/ECF Systems Development:
Given the wide variety of users and beneficiaries of the justice system, in conducting any business
process analysis, the Judicial Conference should seek input from all stakeholders. The Department
of Justice views the following as additional interested entities from whom representative views
should be solicited on privacy interests and the system impact of CM/ECF:
1. All federal agencies, as such agencies may use case file information, be parties to litigation, or
have an interest either in privacy protection or in public access.
2. State Courts
3. State and local law enforcement
4. State Attorneys General
5. Representatives of private sector attorneys, perhaps through the ABA and Federal Bar
Associations
6. The Federal Public Defenders and Panel attorneys
7. Representatives of the public interested in the full range of privacy and public access issues (e.g.,
the media, consumer groups, environmental groups, businesses, victim/witness organizations, etc.)
F. Precautions:
For some time now, the Department of Justice has been wrestling with the numerous issues involved
in electronic case files, mostly in our bureaus. The experience has led to identifying some
precautions that should apply broadly in the Federal government, and also specifically to electronic
case file systems design in the judiciary. They are as follows:
1. What is recorded already on paper will not necessarily stay that way for purposes of use. The
paper may be retained for archival purposes, but it is becoming increasingly cost-effective to make
electronic "copies" of paper documents so that they can be used electronically. For example, the
DOJ's Drug Enforcement Administration (DEA) recently made a substantial investment in
performing a "back-file" conversion of a very large number of its case files to permit the files to be
accessed and used concurrently and speedily in two or more offices. There may be instances where
the courts will find it more cost-effective to convert paper files to electronic form than to handle
conventional paper copies, for the same reason - to permit inexpensive speedy concurrent use by two
or more persons.
2. Do not assume that all electronic case file information is or will be character-based. In electronic
systems, data items such as those entered into forms are prescribed strings of letters and/or numbers.
Similarly, word processing documents are strings of characters and spaces, combined with "control
codes" that are themselves similar to language characters. Software that performs searches for data
finds its "hits" by examining characters and numbers. By contrast, photographs, sound recordings,
and image copies are recorded not as characters but as TV-like or fax-like scans of light and dark
areas. If a document, even a word processing document or data form, is recorded in its
scanned-image presentation, that recordation can not be searched directly for such character content
as names, dates, addresses, or data numbers. In order to accomplish such searching, scanned
(TV/fax-like) images must be processed in the same way that today's paper copies are processed.
In fact, many of the documents in our DOJ case files are scanned image files, usually combined with
some index data that is character-based. In the field of litigation support, evidentiary materials are
more often than not scanned images of documents obtained in discovery. Such images are not
searched directly, but by means of index data that was entered separately when the documents were
imaged. This has a range of consequences. For example, because of the way scanned materials are
indexed or searched, it may be more difficult to detect information requiring protection in such
materials.
3. Case files will not necessarily be either all paper or all electronic. We expect that for many years
to come, DOJ case files, and the case files of most attorneys and courts, will be mixtures of materials
recorded on paper and materials recorded on electronic media not readable directly by the human
eye. Making case files all electronic is expensive, because it requires not only converting all items,
such as letterhead correspondence, to electronic form, but also requires the integrating electronic
items that are encoded and represented in a variety of ways. Examples of the variety are e-mail,
voice-mail, word processing, images, and Web pages. In today's world, someone seeking to combine
all of these must usually resort to putting them all onto a CD-ROM disc, an effort that is not trivial.
In DOJ, we are approaching case files with the expectation that many, perhaps most, will be mixtures
of various materials and recordings, unless a strong business case is made for a homogeneous
electronic file and format. It will therefore be necessary to devise procedures for linking or grouping
paper and electronic file entries and for working with files containing materials of both types.
4. The NARA must be taken into consideration in systems design. We believe that the courts face
very similar design issues to those faced by DOJ in respect to case files as federal records under the
Federal Records Act. That law empowers the NARA to determine ("schedule") how long the records
must be kept. For many, even all, cases, the records are deemed to be "permanent." Permanent
records are the small percentage of all federal records that are taken ("accessioned") into the National
Archives. When the records enter the National Archives, their ownership transfers along with them.
The National Archives then pursues its dual objectives of making the materials available to the
Public and preserving them for posterity. To support those objectives, the materials must be sent to
the National Archives in one of the forms that it deems acceptable. If the sending agency, or court,
has not been holding the materials in one of the acceptable forms, the agency or court will have to
bear the cost of converting the materials into such a form. The suggested short-range strategy of
publishing documents in a national-standard image format is a strategy that should be agreeable to
the Archives. As to the long-range, NARA as a party should be involved in systems design activities
for all "permanent" electronic records.
5. The nature and role(s) of the case file will undergo change. The most significant change with
which all "case file" systems must come to terms is that in the world of paper documents and forms,
a case file is a physical file. It is a gathering in one place of all the pieces of paper (or their
photographic images) that contain the documents and forms in the case. By contrast, in the world
of electronic information, a "case file" is a logical construct, not a physical one. Forms exist only
as displays on a computer screen; their data contents are stored as separate data items in a database
containing data items belonging to all cases. In fact, the data items may be spread across multiple
databases, stored even in different computer storage boxes. Similarly, the documents in a case may
be stored across different systems, different databases, and even different storage units. All the data
items and documents in a case are brought together by software - software that uses sophisticated
indexing and internal library management techniques all of which can be transparent to users,
including judges and clerks.
As to the role(s) of case files, DOJ is already seeing how electronic case files can alter what had been
"customary" processes. One example is in the noticing of counsel and parties involved in cases. In
the world of paper files, the opposing counsel in a case are expected to send copies of pleadings to
one another directly; whereas in the world of electronic case files the notice (which might originate
from either the filer or the court) might be merely a notice that a document has been filed, which the
recipient of the notice can read by accessing the case file where it is to be found.
The terms "push" and "pull" in the world of information technology refer to whether information is
sent from one party to another at the discretion of the sender, or whether it is obtained by the receiver
through an action at a time and place of the receiver's choosing. The judicial processes, heretofore
paper-based, have necessarily followed the push model, including the sending of opinions and orders
from judges as well as the sending of forms and pleadings to them. In the future, the courts together
with the practicing bar are likely to find that some processes can be accomplished more
cost-effectively and expeditiously under a pull model.
Furthermore, the role of electronic case files might differ from paper files as the justice system finds
benefits in integrating the files with the events and record-keeping that can follow a jury verdict or
judicial order. Electronic case files, or portions thereof, might play a direct role in such areas as
victim rights, debt collection, prisoner management, and parole determination. Today, the justice
system finds itself re-entering information at multiple points, from investigation to prosecution to
conviction to incarceration to parole management. Electronic court case files as the official files of
record might help the nation reap economic and performance benefits across the broad justice
system. Information systems professionals refer to this as information sharing or information reuse.
6. Electronic filing and electronic case files are separate issues. Just because several forms or
pleadings in a case are filed electronically does not mean that the case file must or will be itself
electronic. Today, as just one example, it is almost universal practice to print out e-mail messages
for filing with incoming paper correspondence. Also, as this is being written a major effort is
underway in the legal community to establish standards for "tagging" electronic information to make
the information easily recorded electronically and also readily interchangeable across jurisdictions.
That effort is focused now on data items that are typically entered into forms, such as names,
addresses, dates, and dollar amounts. The effort seems to be several years from standardizing textual
documents, which by then are likely to employ color ubiquitously, contain multiple internal
hyperlinks, and perhaps also contain such multimedia ingredients as sound clips and video clips.
Similarly, because a case file is electronic does not mean that all of its contents were or will be filed
electronically. As noted above, the technology today can make it cost-effective in many situations
to take paper documents and feed them through machines that create electronic images of them -
machines that also "read" the character information (text) on the documents and even index the
contents automatically. Therefore, the courts should maintain clear distinctions between the
processes of filing discrete submissions from parties to the courts, and the processes of creating,
maintaining, using, and keeping case files within the courts.
As a final precautionary thought, it should be noted that the subject areas of "privacy" and "security"
are themselves undergoing change, especially with regard to the capabilities, tools, techniques, and
norms for achieving levels of expectation or requirement. The DOJ cannot reliably forecast the
security capabilities it will be using two years hence, much less at the end of this decade. We
anticipate that privacy expectations will stay about what they are now, in 2001, but we have no
expectations about how we will accomplish them in a multimedia world of unified e-mail and
voice-mail, ubiquitous teleconferencing, ubiquitous video interactions and recordings, and
Web-based transactions as the dominant modes of conducting business. As we approach electronic
case files in our own operations we are mindful of dealing with a moving target, evolving rules, and
shifting economics. That is why we encourage the courts to approach electronic case files as both
a short-range (2001-2003) and a long-range (2004-2010) issue, with similar expectations that the two
are different and will lead to different designs.
7. Strive for consistency between systems used in different jurisdictions. At present, the many
federal courts are each adopting their own, sui generis approaches to electronic filing and case
management. This creates numerous risks and inefficiencies. As explained, designing a workable
electronic filing system that appropriately balances confidentiality, security, and public access
interests will require extraordinary efforts. It is clearly preferable to undertake this task once rather
than to attempt to reinvent the wheel repeatedly across jurisdictions. Moreover, as the DOJ GPEA
guidance document explains, there are many pitfalls to designing workable electronic processes. If
the judiciary concentrates its resources on designing a single system of high quality, it will be easier
to avoid these hazards. Finally, the existence of multiple inconsistent systems also creates numerous
other risks and costs; for example, it increases the risk of user error and cost of user training
Conclusion
We consider these issues to be very important, and do not believe that they are amenable to easy
solutions. Although the problems can be solved, and the essential interests of access and privacy can
be reconciled, doing so will require a very substantial effort (including a substantial investment of
resources) by the courts, careful consideration of many particular situations and interests, and
sustained consultation with the numerous interested parties. We appreciate the opportunity to
comment and the efforts to address these very difficult questions. We look forward to continuing
to work with the Judicial Conference on resolving the sometimes conflicting interests of privacy and
public access.
Attachment A: Sample Scenario for Short term Public Access to Mimic Paper System
1. A Requestor logs onto court site and requests a specific case.
2. The site displays the list of available documents in the case file and the number of pages in
each document.
3. The requestor selects the desired document(s) for his/her shopping cart and the desired photo
image* format.
4. The site presents the secure order form.
5. The requestor enters the e-mail address to which the pages are to be sent.
6. The court e-mails the purchased pages as photographic images (mpeg or jpeg), that have been
protected with an anti-exploitation mechanism.
* Because the photographic images we are suggesting as the sole means of electronic dissemination
in this sample scenario are inaccessible to people who use screen readers and some other types of
assistive technologies, courts must also consider how to provide the material, upon request, in an
alternate accessible format (e.g., Braille, audio cassette, etc.). This will protect the privacy and
security interests while ensuring that people with disabilities have equal access to the information.
No. 241
Jeffrey E. Risberg
Assistant Federal Public Defender for the District of Maryland
Defenders Services Advisory Group
This statement is submitted by the Defender Services Advisory Group (DSAG), a committee of the heads of the federal public and community defender organizations and representatives of private attorneys who are members of the Criminal Justice Act panels in the federal courts. DSAG brings the concerns of the defender organizations and panel attorneys to the Defender Services Division of the Administrative Office of the United States Courts. Pursuant to the Criminal Justice Act, federal defenders and panel attorneys represent persons charged with federal crimes in courts of the United States who cannot afford to retain an attorney. Consequently, our interest is in public access to criminal case files. We have no interest in or position with regard to civil or bankruptcy case files.
In general, DSAG supports option 2 for criminal cases as outlined in the "Request for Comment," which suggests limited public access to criminal case files. For appellate criminal cases, option 2 represents a consistent approach.
Some documents filed in criminal cases should be sealed for one or more of the following reasons: 1) to protect a defendant's right to a fair trial; 2) to shield personal information not relevant to the criminal case, e.g., medical and psychological history; 3) to protect a defendant's family from harassment or undue publicity; 4) to reduce the risk that co-defendants would retaliate against a cooperating defendant; 5) to protect sensitive law enforcement investigations and initiatives.
In addition, documents now protected from public dissemination by statute, e.g., pretrial services reports, presentence reports, discovery and subpoenaed documents not introduced as evidence, should remain inaccessible to the public.
Parties to the litigation should have full access. Documents filed that are not sealed or sealable by statute should have a presumption of open access, unless a party petitions the court to seal. Judges should have the authority to seal documents on a case-by-case basis, consistent with statutory and constitutional concerns.
Once entered in open court, plea agreements should be public. Docket entries should generally be public. Where public access to a docket entry or plea agreement implicates one of the cautions listed above, the presiding judge should have the authority to seal that entry, at the request of the parties, for good cause.
We suggest that a Commission or working group be established to identify what categories of documents filed in a criminal case should have the presumption of free public access or a presumption that they be sealed, after a review of the applicable statutes and constitutional jurisprudence. Represented on the Commission should be: criminal defense attorneys from the private bar, federal and community defender organizations and CJA panels; federal law enforcement officials, including the Department of Justice; representatives of the media and privacy organizations; trial judges appointed or suggested by the Judicial Conference. The Commission should be staffed by the Administrative Office of the United States Courts.
DSAG would be pleased to participate in such a committee or working group.
James Wyda
Federal Public Defender for the District of Maryland
Jeffrey E. Risberg
Assistant Federal Public Defender
No. 242
1/24/01
Evan A. Davis, President
The Association of the Bar of the City of New York
Dear Sirs and Madams:
January 24, 2001
The Association of the Bar of the City of New York is pleased to have the opportunity to respond to the Request for Comment on Privacy and Public Access to Electronic Case Files. The Association recognizes that the Judicial Conference is in the initial stages of addressing the above topic. The Association of the Bar is also early in its examination of the issues raised in the Request for Comment, and has yet to crystallize its views. In the interest of furthering the debate, we are enclosing the separate views of two of our committees: the Committee on Federal Courts, which addresses issues regarding the operation of, and practice before, the federal courts; and the Committee on Communications and Media Law, which focuses on First Amendment concerns.
We will be working further over the next several months in a multi-committee effort to address this important topic, with the expectation of developing an Association position. In the meantime, we would be pleased to be of assistance as your deliberations continue.
Truly Yours,
Evan A. Davis
Committee on Federal Courts
Dear Sirs/Mesdames:
On behalf of The Association of the Bar of the City of New York, we are pleased to submit the following response to the Request for Comment on Privacy and Public Access to Electronic Case Files.
The Association of the Bar of the City of New York was organized in 1870 "for the purposes of cultivating the science of jurisprudence, promoting reforms in the law, facilitating and improving the administration of justice, elevating the spirit of integrity, honor and courtesy in the legal profession, and cherishing the spirit of collegiality among the members thereof." Ass'n of the Bar of the City of N.Y. Const. Art. II. The Association's Federal Courts Committee is directed "to observe the practical working of [all federal] courts and . . . to make such reports or recommendations as the Committee may deem advisable for the purpose of improving the administration of justice in such courts." Ass'n of the Bar of the City of N.Y. By-Law XVI(a). The Committee's membership is broadly representative, including two Federal Magistrate Judges, lawyers employed by the Federal, State, and City Governments, lawyers from large, medium-sized, and small firms, and lawyers primarily representing both plaintiffs and defendants.
We applaud the Federal Judiciary for seeking comment on the privacy issues involved in electronic public access to court case files. As described below, we believe that these issues are significant ones today, and will become much more important in the future as electronic case filing becomes more and more widespread. At the same time, since electronic case filing is presently in its infancy, we believe that it is difficult to forecast today the precise nature and magnitude of the privacy problem that will arise when electronic case filing is commonplace. While we do not believe that this is a ground for doing nothing about the problem at the present time, we do believe that it counsels some degree of caution in dealing with a problem whose precise dimensions are not yet clear.
Having said this, we believe that a number of general points can be made at this time:
1. The Privacy Implications of Public Electronic Access to Court Case Files Are Significant, and Will Become More Serious in the Future.
Public electronic access to court files raises problems of privacy that are qualitatively different from those inherent in the existing ability of the public to access court papers in paper form at the courthouse. When it becomes possible to conduct full text searches of court files throughout the nation by a single easy and inexpensive electronic operation, it will be possible to use court files to gather information about individuals and other legal entities on a scale that is not presently feasible. We agree that this is an issue that is worthy of concern.
2. Rules Governing Public Electronic Access to Court Case Files
Should Be Adopted on a Uniform Nationwide Basis, Not on a Court-by-Court Basis. As various Federal Courts have adopted rules governing electronic case filing, they have perforce also adopted rules governing public access to electronic case files. These rules are not presently uniform among the various Federal Courts. We believe that it is highly desirable for the Federal Judiciary to adopt a uniform nationwide approach to the problem of public electronic access to court case files, not only because the governing principles should not vary from one court to another, but also because the phenomenon of public electronic access to court case files, particularly when it is fully developed, will be a nationwide phenomenon, not a localized one.
3. Differential Electronic Access to Court Case Files Raises Significant Issues. A number of the proposals which have been made, in the Request for Comment and otherwise, would create differential levels of electronic access to court case files. Some such proposals would limit electronic access to court personnel, parties, and counsel for the parties. Other proposals would allow some degree of electronic access to members of the media, but not to the public at large. In the view of our Committee, such proposals for differential access raise significant questions, on both a policy and a constitutional level. It may be that some form of differential access may ultimately prove to be both necessary and constitutional, if the problems with public electronic access to court case files prove to be both very serious and impossible to control by any means less restrictive than differential access. It may be, on the other hand, that privacy interests can be effectively protected by protective orders or sealing orders. At least until a strong showing of necessity has been made, our Committee would be reluctant to endorse any form of differential access to court case files.
Thank you for the opportunity to comment on the privacy and security implications of providing electronic public access to court case files. Please do not hesitate to let us know if there is any other information we can provide that would be helpful to you in your deliberations. Going forward, we will remain extremely interested in these important issues, and we would welcome the chance to comment further as your deliberations assume a more concrete form.
Very truly yours,
Guy Miller Struve
Committee on Communications and Media Law
Dear Sirs and Madams:
The Committee on Communications and Media Law of the Association of the Bar of the City of New York hereby submits its comments on the implications of providing electronic access to court files. The Committee is made up of attorneys with substantial experience and expertise in media law, including issues arising from public and press access to government information. We would be pleased to participate in a public hearing if one is held.
We commend the Judicial Conference for seeking comments on these important issues. We believe that the transition to electronic case files represents a dramatic and wholly positive change. The practical importance of the change cannot be overstated, and in most cases it is entirely uncontroversial. A paper copy of a document filed in court (1) requires a trip to the courthouse to inspect or copy, (2) is available for such inspection and copying by one person at a time, (3) is available only during business hours, (4) may be archived in a warehouse only years after it is filed, (5) may be in use at trial or in chambers, (6) may be misplaced, damaged or destroyed, (7) typically can be copied only by very patient people with vast amounts of pocket change on antiquated photocopying machines and (8) must be manually searched for relevant information by, generally, uninformed agents for the parties actually seeking the information. Electronic records solve all of these problems. We applaud the judiciary for its efforts in this area.
The request for comments and the accompanying staff paper entitled "Privacy and Access to Electronic Case Files in the Federal Courts" suggest that in a limited number of areas restrictions may be placed on electronic access where no restrictions exist as to the paper record-. We view these suggestions as unwise, unwarranted and constitutionally suspect.
There are adequate measures available today for litigants and others to request the sealing of information filed in court, in whatever medium, although the standard is, properly, a difficult one to meet. It may also be that thought should be given to systemic reform of what information should be required of litigants. Any such measures should remain medium-neutral.
In any event, what seems to us quite impermissible, as a matter of fairness and of constitutional law, is either of the two kinds of discriminatory access discussed in the staff paper: (1) discrimination between those seeking access to paper records versus those seeking access to electronic records and (2) discrimination among those seeking access to electronic records based on status.
The uses the press and public may make of court records is not limited to, as the staff paper seems to suggest, the monitoring of government activity, though that is of course an important reason for ready access to court files. The substance of the disputes that find their way into court are also legitimate subjects of public inquiry, as litigation by its nature is a matter of public concern.
The staff paper also seems to suggest that the private or public nature of a given piece of information is obvious on its face. But the press often focuses on patterns - of frivolous litigation, say, or of selective prosecution. In the context of such an inquiry, an arguably "private" piece of information may be the crucial piece of data to establish an important pattern.
Further, ready public access to statements made in court documents about ostensibly "private" matters can prevent perjury and other abuses. See Richmond Newspapers. Inc. v. Virginia 448 U.S. 555, 569 (1980) (openness "discourage[s] perjury, the misconduct of participants, and decisions based on secret bias or partiality').
Finally, litigants who institute civil actions make an affirmative choice to "abandon qualms about disclosure of private facts." Doe v. Museum of Science & History, 22 Media L. Rep. (BNA) 2497, 2501 (Flat Cir. 1994) ("a litigant has no reasonable expectation of privacy in the subject matter of a case"). Alternative means of dispute resolution are typically wholly private and confidential, and litigants who reject those options in favor a the public courts must generally live with the consequences of their decisions. Even were the privacy interests at issue more susceptible to definition and segregation, there is simply no adequate justification for the two sets of proposed discrimination.
If access is the good thing that the Supreme Court and First Amendment scholars say it is, it becomes an even better thing if the press and public can exercise their access rights as a practical matter. To allow complete access to paper files only would represent powerful discrimination in favor of those with the means to send agents to courthouses - the clients of private investigators and major news organizations come to mind. Such discrimination against smaller media entities and ordinary citizens interested in the workings of the judicial branch or in monitoring the conduct and substance of litigations strikes us as unacceptable.
It should be borne in mind, too, that regulation aimed at electronic files may in relatively short order amount to regulation of all court files, as paper records may well disappear entirely in our lifetimes.
The second proposed discrimination, based on status, is even more problematic. The request for comments outlines a distinction between permitting complete remote electronic access to judges, court staff, parties and counsel on the one hand and no such access to anyone else. This proposal runs afoul of both the First and Fourteenth Amendments.
It is a flat violation of the First Amendment for the government to pick and choose who may obtain access to information unless the discrimination is necessary to advance a compelling government interest. See, e.g., Anderson v. Crvovac. Inc., 805 F.2d 1 (1St Cir.1986) (First Amendment prohibits court from "selectively excluding" newspaper from access to discovery materials made available to health officials and a competitor). Such government discrimination violates the Fourteenth Amendment's equal protection clause as well. See, e.g., McCov v. Providence Journal Co., 190 F.2d 760, 765 (1 st Cir. 1951) (city's denial of access to tax records to one party while allowing it to a competitor "constitutes a denial of equal protection of the laws"); Donrev Media Group v. Ikeda, 959 F. Supp. 1280, 1286 (D. Haw. 1996) (access to government records cannot be selectively administered consistent with equal protection).
Nor is the proposed discrimination based on status a practical way to achieve the asserted goal of preventing dissemination of private material. There would - and without case-by-case court intervention, there could - be no restriction on redissemination of that material by anyone entitled to remote access. It is not unusual even today to see Web sites devoted to archives of a litigation involving the site's creator.
The notion that the right way to protect sensitive material is to entrust it to litigation adversaries but to deny general remote electronic access seems a very uneasy fit between the asserted goal and the means chosen to reach it. Of course, parties might be forbidden from such redissemination in appropriate cases. Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). But if there is to be court intervention in any event, a case-by-case approach to every aspect of these issues is warranted. The staff paper relies heavily for both sets of proposed discrimination on United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U. S. 749 (1989). That case does contain language contrasting "hard-to-obtain information" with "a computerized summary located in a single clearinghouse of information." 489 U. S. at 764. That sounds apt. But the case involved the application of the Freedom of Information Law's exemption for "unwarranted invasion of personal privacy" to FBI "rap sheets."
The case thus did not involve (1) law governing the judicial branch (2) judicial records or (3) records available in paper form anywhere. The executive branch generally has no obligation to disclose anything at all, and the public's access rights to executive branch information are governed not by the Constitution and the common law but by porous and shifting legislation. The presumptions concerning judicial records are entirely different and are rooted in the First Amendment and a tradition of access that preceded the founding of our nation.
The plaintiffs in the Reporters Committee case made the argument that because bits and pieces of the information they sought were available in public files, all information in all FBI rap sheets should be made public. That is the argument the Supreme Court addressed in the passages quoted in the staff paper. The Court had nothing to say about the situation here, where the very documents at issue are judicial documents that are publicly available in their entirety, but only in paper form.
Among the topics on which comment was sought were "the appropriate scope of judicial branch action in this area" and "whether it is appropriate for the judiciary to establish policy in this area." We submit that current law and practice is entirely adequate.
Respectfully submitted,
Jan Constantine