ARCHIVED: Model Policy on Public Access to Court Records

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Good afternoon. I am very pleased to be here with you to summarize briefly the formal comments submitted to you by the American Association of Law Libraries on the proposed Model Policy on Public Access to Court Records. We commend the National Center for State Courts and the Justice Management Institute for developing the Model Policy and applaud your recognition that the public has a right to expect some degree of uniform public access policies across state jurisdictions and local courts. The Model Policy is a step forward towards this important goal and achieves its objectives in raising major issues that must be considered as courts balance improved electronic access to court information through the Internet by the public with 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's formal comments are based on two core principles of our association. The first is that accessible government information is not only an essential principle of our democratic society but also a valuable public good created at taxpayer expense. We are very pleased to see the courts moving towards a more electronic environment. The second core principle 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.

The Model Policy and accompanying Commentary illustrate the tension that exists between the responsibility of government entities such as the courts to provide broad, equitable public access to information while concurrently protecting citizens from harm that may result from access through the Internet to personal data identifiers that may be contained in these records. The move to broad electronic access to such highly sensitive personal information as that contained in many court records brings its own set of challenges and risks, particularly when technological solutions that might alleviate many privacy concerns of remote electronic dissemination are not yet in place.

This afternoon I would like to take the opportunity to summarize briefly three highlights of AALL's comments on the Model Policy:

First, we believe that individuals must be aware of and be able to control how their personal information is disseminated and used. We therefore are concerned that enhanced electronic access to court information such as electronic case files may provide individuals and commercial entities the opportunity to disclose and exploit personal information. We believe that the draft rules should be much more explicit in limiting the types and amount of personal information released in court records through the Internet. The very "broadcast" nature of the Internet—and associated harms the Model Policy itself touches on in the Commentary to Section 4.40—undermine privacy.

As noted in the Commentary to Section 1.00, the proposed "typical test" for privacy involving "(1) whether the release of information is highly offensive to a reasonable person; and (2) whether the release of the information would serve no legitimate public interest" is, we believe, misconceived. First, access to information laws that acknowledge limitations in the name of privacy properly recognize an inherent right to privacy—something much greater than a simple measure of "what is highly offensive to a reasonable person." Second, the two-prong test of this Section of the Model Policy implies that a right of privacy is recognized only where the proponent demonstrates that the public has no legitimate interest. We disagree. The public often has an interest but that interest must be balanced against the personal right of privacy, and the public interest may frequently fail to outweigh the privacy interest.

This is crucial to recognize because a countless number of public opinion polls over the past few years demonstrates that the public is very concerned about their privacy and how their personal information is tracked, used and disclosed over the Internet. They worry that publicly available personal information leads to criminal activity, such as identity theft or stalking. Indeed, in a statement before the U.S. Senate's Subcommittee on Technology, Terrorism and Government Information on March 20th of this year, Howard Beales, Director of Consumer Protection at the Federal Trade Commission, describes the serious injury resulting from identity theft, noting that the FTC receives over 400 complaints per week. Identity theft is a serious yet invisible crime that most victims don't discover until long after the identity theft occurred.

Further, while Americans are generally very pleased with advances in e-government, particularly for purposes of government accountability, a Hart and Teeter poll in October 2000 found that many avoid using e-government services, such as filing tax returns online or renewing driver's licenses, because they fear online invasions of privacy. (Federal Computer Week, October 2, 2000) In addition, a Gallup survey in September 2000 found that an overwhelming majority of Americans do not want the government or other third parties to have access to their medical records without their permission. (Institute for Health Freedom Press Release, September 26, 2000) And while pages 22-23 of the Commentary list types of information that should not be open to the public pursuant to federal, or state laws, it must be noted that medical privacy is a great concern to the public and an issue of ongoing debate in Congress. Many believe that current state medical privacy laws are inadequate to protect individuals. The Model Policy rule in this area, particularly when state laws range from very weak to very strong, must incorporate the highest degree of protection possible when it comes to the medical and health information of litigants.

I would like to mention specifically an amendment we propose to Section 8.10 that requires the court to inform not just litigants but also third parties that information in the court record will be accessible to the public, including remotely. In addition, we propose that the rule include information about how an individual might restrict access to personal information. We therefore suggest that the rule be amended to read as follows:

The court will: (a) inform litigants and third parties that information in the court record about them is accessible to the public, including remotely; and (b) provide information to litigants and third parties about the process by which they may request restrictions to public access.

Second, we are very concerned about the bulk distribution of court records and believe that personally identifiable information should not be released in a bulk distribution form at this time. The Model Policy does not adequately protect individuals from the harms of data aggregators who merge data from a variety of public and private sources to create huge personal profiles on individuals. Simply limiting what sensitive content is contained in court records is not sufficient when it comes to electronic information distributed in bulk. Some might argue that the cat is already out of the bag, and indeed many companies have profited enormously from access to court records, including Social Security numbers and financial information.

However, the ease of accessing entire case files through the Internet will only further exasperate a situation in which small pieces of data on their own may not seem threatening but when aggregated with other personal identifiers becomes very threatening. Further, as the Commentary in the Model Draft points out, bulk distribution can result in a loss of control over time, with the possibility that the information becomes "incomplete, inaccurate, stale or contains information that has been removed from the court's records." The Commentary goes on to point out that "A particular problem with bulk distribution of criminal conviction information has to do with expungement policies." Without imposing some form of control on bulk distribution, even information that did not at first violate privacy can, in time, cause serious harm to privacy interests.

Given that some states currently don't allow court records to be sold bulk to third party commercial entities and that the industry remains unregulated, providing bulk distribution to electronic records that contain such vast amounts of personal identifying information is of great concern to us. We believe that this rule carries potential for the misuse of personal information. Our concern is not with the online legal publishing industry that seeks to access court records for the purpose of adding value to them and providing highly demanded enhanced services available through subscriptions. It is rather with bulk distribution to those who seek vast amounts of highly personal information from government databases to create databanks that invade individuals' privacy and over which individuals have no knowledge or control.

Third, we believe that the public has a right to expect that electronic court records made broadly available through the Internet are both authentic and reliable, and that courts should employ technological solutions to ensure the authenticity and integrity of their public electronic records. The only mention in the Model Policy of "whether the information in electronic form is the official record, as opposed to, or in addition to, the information in paper form" appears in Section 3.40—DEFINITION OF "IN ELECTRONIC FORM". The authenticity of electronic information available from the courts must be ensured in some manner. This is particularly true for born digital information, such as electronic case files, for which there may not be an "official" print version. Moving too quickly into remote electronic public access without the ability to ensure the integrity of the information may lead to incidents that will harm individuals when errors have been made in the information, and will thereby result in reduced public trust and confidence in the judicial process.

And fourth, our final and very important concern is not at all addressed in the Model Policy. AALL strongly believes that primary legal material, including court information from all jurisdictions, must be in the public domain with no copyright or copyright-like restrictions. This important issue is explicitly addressed in Section IV.B. of AALL's Government Relations Policy (March 2001):

Government information, including the text of primary legal materials, judicial or administrative decisions, statutes and regulations, must be in the public domain and available to the public without restriction. AALL supports a general prohibition against copyright restrictions on government works. AALL opposes any copyright claims, restrictive licenses, royalty arrangements, statutory or regulatory revisions, or interpretations of federal, state or local laws or regulations that restrict access to, or the use or reuse of, government information.

Thank you for this opportunity to comment on the Model Policy. As law librarians, members of the American Association of Law Libraries are strong advocates of public access and we serve to provide our user communities with access to comprehensive collections of legal and government information. At the same time, the protection of personal privacy is an important core value of our association.

We remind the Advisory Committee that 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. A solution to balancing the tension between public access and the protection of personal privacy is perhaps a test in defining just what should be part of the public court record to ensure accountability and public trust and confidence in the courts. While the public interest will be well served with increased access to information from the courts through the Internet, it is dubious how the inclusion of specific, sensitive personal data identifiers would contribute to judicial accountability and public trust.

As you analyze the comments and revise the proposed rules, AALL urges you to strengthen them on the side of protecting personal privacy over broad public access through the Internet of personal identifying information. If any errors are to be made in striking the right balance between broad electronic access to court records and personal privacy concerns, they should be on the side of reduced access to very sensitive personal information when serious personal risks may be at stake. Thank you.