Magazine article Security Management

How Public Should Public Records Be?

Magazine article Security Management

How Public Should Public Records Be?

Article excerpt

A recent request for comment on providing electronic court case files online has generated an impassioned response from more than 200 groups.

You might think that there's nothing practical a bout obscurity, but "practical obscurity" has long been a legal concept. It means that records made public in connection with a court case remain, for all practical purposes, obscure because they are difficult to access. They are located in courthouses around the country, available only to those who travel to where they are. The Internet has changed that by making files instantly accessible to anyone anywhere. And that has generated a debate about whether public court records were ever meant to be quite so public.

A recent request for comment on providing electronic court case files online has generated an impassioned response from more than 200 organizations, ranging from privacy groups to newspaper associations. Despite some disagreements, the respondents concurred about the possible risks to privacy in providing online access to information that has always been public but essentially protected by its "practical obscurity."

A subcommittee of the Judicial Conference of the United States, which makes policy with regard to the administration of United States courts, solicited the comments and suggested several policy options garding electronic access to civil, criminal, bankruptcy, and appellate case files, including treating all filed documents the same, restricting or redacting sensitive information on the documents, and segregating information into public and private files. Access to civil and bankruptcy case files generated the most responses.

The Electronic Privacy Information Center (EPIC) writes that electronic access enables "unwarranted invasions into the personal matters of litigants and witnesses." Chris Hoofnagle, EPIC staff counsel, suggests that courts create separate public and private files, with the redacted public file available at the courthouse and online. "[T]he 'public file' alternative addresses both the access interests and the privacy interests most effectively," Hoofnagle writes. In bankruptcy files, sensitive information should be segregated and "collected on separate forms protected from public access," the letter says.

The American Association of Law Libraries believes that court files should be identical, no matter how they are accessed. Mary Alice Baish, acting Washington affairs representative, writes that "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. …

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