Prompted by the growing demand for the electronic availability of public records, a coalition of state court administrators offered a model policy on access to court records that could, if put into effect, restrict access to a variety of records.
The coalition designed the proposed policy to establish a consistent standard for state courts to follow with regard to access to court records. The policy explains that "technological innovations have resulted in more court records being available in electronic form" and that access to records is now easier.
"These new circumstances require new access policies to address the concern that the proper balance is maintained between public access, personal privacy, and public safety, while maintaining the integrity of the judicial process," the policy reads.
The State Justice Institute funded the effort to draft a model policy for the states, a project undertaken by The Justice Management Institute. The National Center for State Courts on behalf of the Conference of Chief Justices, the Conference of State Court Administrators and the Model Policy Project Advisory Committee asked for public comments on the model policy.
The Model Policy Project Advisory Committee was to hold a public hearing on the proposed policy on May 17 in Washington, D.C.
The Advisory Committee will then meet to discuss the policy and consider changes. The committee will present the proposed policy at the joint annual meeting of the Conference of Chief Justices and Conference of State Court Administrators in Rockport, Maine, from July 28 to Aug. 1. The attendees at the meeting will vote on whether to endorse the policy.
Access to some records may be "inappropriate," the coalition determined, requiring the need for the new rules. The proposed policy cuts off access entirely to certain categories of records. Section 4.30 denies access to a wide variety of material including financial information, "proprietary business information," copyrighted material, sealed records and "information that is not to be accessible to the public" pursuant to federal or state laws.
Although there is a long-standing rule that the public may not access sealed records, the effects on other categories of information are unclear. For example, although federal laws might bar disclosure of certain materials by federal agencies, there is no federal law that directly bars access to court records. If the material was disclosed by the federal agency and used in a lawsuit, it is unclear why the courts would not be permitted to allow public access to the material.
The proposed policy suggests that a balancing test be used to close off access to other records. This test weighs "risk of harm" and "privacy interests" against general interests in favor of access.
Under current law, access to records may be denied only where there is a compelling interest at stake and the denial of access is narrowly tailored to serve that interest. Most cases on the subject have held that privacy or a theoretical risk of harm are insufficient grounds to restrict access. Thus, if the proposed policy were to become effective, it would substantially change the public's right of access to court records.
The Reporters Committee for Freedom of the Press, joined by the Society of Professional Journalists, the Radio-Television News Directors Association and the American Society of Newspaper Editors, oppose the proposed policy, expressing concerns about the drastic changes in law that would follow.
In comments filed about the policy, the press groups reject the new balancing test as too vague.
"Even if the public's right of access to court documents could be restricted in certain circumstances, a court would need to specifically delineate what compelling interests would be at stake rather than rely on a vague and ambiguous term such as `privacy,'" the comments read. "The fundamental principles of due process mandate that the public's right of access not be abrogated unless there are specific, compelling reasons, supported by actual evidence and not mere speculation, to deny public access to court documents."
The press groups also objected to specific portions of the proposed policy, including the suggestion that records may be restricted based on copyright law, the proposed liability for inaccurate information, the attempt to control the uses of information obtained from court records, the use of the "invasion of privacy" tort to control the dissemination of information in court records, the proposal to restrict access to unsworn documents, and the threat to revoke access to anyone whom the court deems to have "abused" access to records.
Media attorney Alice Neff Lucan also criticized the policy in comments she submitted on behalf of The Daily News, a legal newspaper in Memphis, Tenn. She thought that courts have the authority to remind people that they should not misuse information.
"But there have to be personal identifiers on the information," Lucan said. "If you release the name John Smith and you don't release personal identifiers, then which John Smith are you talking about? It's not an invasion of privacy to describe things about a person that everyone can see."
Ted Gest, president of Criminal Justice Journalists, a national organization of reporters covering crime and justice, said the proposal's drafters offered no evidence that online access to court files would cause major problems any more than open files in the courthouse do now.
"The suggested balancing test could spawn needless litigation over items in court legal filings," Gest said. "Policy on this important issue should not be made on the basis of hypothetical horror stories or assertions of `privacy rights' that have little bearing on the historic public access to the workings of the justice system."
The Reporters Committee criticized the model policy on access to court records on many grounds:
* The Model Policy curtails the traditional rule that court records are presumptively open to the public. It replaces the presumption of openness with a system of rules that permits access to some records, presumes no access to others, and lets the courts use a balancing test to decide whether other records should be accessible. The balancing test weighs the public interest in access against the "risk of harm" if the record is released.
* The policy suggests, for example, that states may wish to impose an across-theboard ban on access to jury voir dire transcripts. The U.S. Supreme Court has already indicated that such a rule would be unconstitutional. In Press Enterprise Co. v. Superior Court (Press Enterprise I), 464 U.S. 501 (1984), the Court found that it was unconstitutional to restrict access to voir dire. In Press Enterprise Co. v. Superior Court (Press Enterprise 11), 478 U.S. 1 (1986), the Court held that a First Amendment test must be applied in any case where public access would be restricted. Such cases require a careful examination of the facts in a particular case prior to making a determination as to whether public access should be permitted.
* The Model Policy suggests that the courts should withhold records if the records might be subject to copyright law. However, copyright law was never intended to prevent distribution of public records. There is a longstanding principle that facts cannot be copyrighted, and the "fair use" doctrine would most likely apply to many uses of information contained in court records. This aspect of the Model Policy creates problems where none currently exist.
* The Model Policy suggests that information must be updated or eliminated if the status of a case changes. It requires those who obtain "bulk" information to update or eliminate information that the court decides is no longer "appropriate." These rules suggest that the courts can force people to learn or unlearn information. The Model Policy proposes that there should be liability for those who disseminate inaccurate or outdated information. It also proposes liability for those who file "irrelevant" material in cases.
The Model Policy provides for across-the-board prohibitions on the dissemination of some categories of information or court records, including: Social Security numbers; copyrighted material; child support materials; juvenile files; adoption and custody records; guardianship and conservatorship records; mental health proceedings; information about victims, witnesses, informants, or jurors; wills; medical or psychological records; records containing descriptions of DNA or other genetic material; search or arrest warrants; addresses of litigants; photographs containing violence, death or children; any financial information; and sealed or "confidential" records. The Model Policy attempts to adopt a "privacy test" from tort law to apply to the release of court records. It states that "privacy" should be protected and describes the "test regarding privacy" as follows: "(1) whether the release of information is highly offensive to a reasonable person and (2) whether the release of information would serve no legitimate public interest." But even under the language of the Restatement of Torts, from where the language seems to come, there is no "privacy interest" in materials filed in a lawsuit.
* The Model Policy states that it should "provide government the same level of protection as is provided to businesses." However, government is inherently a public institution. Businesses are private entities. It is inappropriate and unwise to say that government - a public entity - should have the same protections as business - a private entity.
* The Model Policy suggests that "a court might differentiate access to information based on the veracity of the information." In essence, the court would decide what information is "true" before it would release a record.
* The Model Policy suggests that courts can revoke any person's right to obtain records if they "abuse" the information. This leaves far too much discretion in the hands of administrators who wish to punish people for their speech and violates the wellestablished principle that government agencies should not discriminate among members of the public based on the citizen's speech.…