Privacy interests are prompting the judiciary to block access to courthouse files
Federal and state courts across the nation are quickly developing the technology and obtaining the equipment to provide Internet or electronic access to their records. Providing such access will make records searches quicker and more efficient for the press and the public.
Nevertheless, some courts are questioning in the name of privacy whether to allow such access.
The federal judiciary sought comment on the privacy and security implications of providing electronic public access to court files. The Reporters Committee for Freedom of the Press submitted comments on Jan. 26, which were joined by the Society of Professional Journalists, the D.C. Chapter of SPJ, and the Radio-Television News Directors Association.
A tentative plan would provide access to files through the Internet, but the judiciary has not made a final decision on exactly how much material would be available via the Internet. The Administrative Office of the U.S. Courts, citing the need to address various privacy and security concerns, has proposed a number of policy options depending on the type of court record, and has sought public comment on which options to select.
Regarding civil case files, the Administrative Office has asked for comment on four competing proposals. The first is to maintain the presumption that all filed documents that are not sealed are available both at the courthouse and electronically. 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 also relies 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 second proposal defines what documents should be included in the "public file" and, thereby, be available to the public either at the courthouse or electronically. This option treats 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 third option establishes "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. This approach would not limit how case files may be copied or disseminated once obtained at the courthouse.
The last option presented for civil case files seeks an amendment to one or more of the Federal Rules of Civil Procedure to account for privacy and security interests.
The federal court administrators have asked for comments on two options regarding criminal case files.
The first completely denies electronic public access to criminal case files. Due to what it calls the very different nature of criminal case files, the courts say there may be much less of a legitimate need to provide …