State Court Records Access-Does the Medium Matter?

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Historically, state courts have offered public access to court records where the information resides-at the local courthouse. Any person willing to travel to the courthouse could request to view and copy records from the court clerk or document custodian in the available format, whether paper or electronic. However, with the emergence of record scanning, data collection and storage, the public has demanded instant delivery of all court documents, including judicial opinions, orders, pleadings, and images. Many state courts have developed web sites and online subscription services to provide virtual access to their records, previously accessible only by physically visiting the courthouse repositories. Additionally, some private companies have capitalized on the demand for court records by collecting documents from multiple jurisdictions and creating databases that offer expanded state coverage. The advances in technology have radically changed the way that courts collect, archive, and distribute their data, but the corollary expectations of the public to immediate and unrestricted access have compelled many states to reexamine the openness of their court record policies.

While most courts continue to digitize and maintain their records electronically, many are limiting the type of records or contents available for public access. That is because some of those records may disclose private information that can be used to harm an individual. Personal identifying information, such as a party’s full name, birth date, address, social security number, financial or health records may be used to inflict financial harm, damage a reputation, or invade a person’s privacy. Identity theft, the fastest growing crime in the nation according to recent FBI statistics, can be facilitated by the fraudulent use of someone’s personal data found in court records. The availability of batch or bulk data enhances the risk as multiple records can be retrieved remotely. As state legislatures and Congress contemplate stricter privacy guidelines on data collected about individuals and consumers, court administrators should follow these legislative developments closely.
The National Center for State Courts, one of many organizations that monitor judicial trends, has been developing guidelines for online record distribution since the technology emerged. In 2002, the Center provided these recommendations:

The guidelines address court records in both paper and electronic form, and although they are premised on a general rule that access should be the same no matter the format, they recognize that some information in court records may be inappropriate for remote electronic access. Essentially, the guidelines advise each state court to determine the types of court record information that should be restricted from remote electronic access…The commentary to guidelines suggests this information include Social Security numbers, financial identifiers, medical records, and information about minors and third-party witnesses and victims.

Lynn E. Sudbeck, The Justice System Journal, Volume 27, Number 3 (2006)

The personal data identifiers above could certainly be used to steal, damage, or destroy an individual’s financial status, reputation, or right to privacy. There are additional identifiers that could be included by virtue of the case type requested: adoption, probate, and guardianship records, paternity results, and mental health assessments. It is easy to contemplate the danger posed by revealing these data elements, however benign the inquiry or inadvertent the disclosure. What safeguards are in place to prevent sensitive personal information from being divulged in state court records, whether in paper or electronic format?
State courts must seek a balance between protecting privacy rights and public access to court records. The online technology continues to evolve, with enhancements in data searchability and records maintenance. Many jurisdictions are moving toward mandatory electronic filing of case documents, while others continue to operate in a paper-only environment. What options are available to state courts confronted by this dilemma? Here is a summary of some of the solutions proposed by court staff and court-watchers:
1) Return to courthouse access only. Perhaps the least progressive solution, as counter-access only is more labor intensive, less efficient, and more time restrictive. But the requirement that someone physically travel to the courthouse and request information in-person reduces the presumption of fraudulent or malevolent use, and also discourages bulk record requests.
2) Limit the case types or documents available online. Certain types of cases or documents would be restricted to courthouse access. Case types would include family-court proceedings, probate, guardianship, or mental health commitments, paternity and sterilization proceedings. Documents limited to courthouse viewing would include videos, autopsy photos and reports, medical or psychiatric records, accident photos, income tax returns, and expert evaluations in family-court proceedings.

All other case types and documents could be available online, although some court administrators advocate only allowing court indexes, calendars, and registers be accessible remotely.
3) Create levels of access by user type. Limit access to type of user. Create levels of permission to view and copy data dependent on the requester’s professional or qualified interest-parties to the case, attorneys, or court staff. Technology exists to grant access to entire record to these individuals, while restricting personal data fields to other users, but it is cost-prohibitive for many courts.
A related solution would be to allow public access, but to require end users to justify the purpose for requesting the information, and to certify that the data would be used only for that purpose. An online agreement or contract between the courts and users would be a pre-condition for this access.
4) Standardize the personal information to be redacted from a court record, whether accessed remotely or at the courthouse. This may appear to be the most practical solution, but it is not without its objectors. Generally, the type of information to be redacted (without sealing the entire record) would include: Social Security number; full date of birth; address and phone listings; financial account numbers; driver’s license number, and Taxpayer ID. These personal identifiers would be removed not only for parties to the case, but also for witnesses, informants, victims, children, and jurors. Who objects to these restrictions? Most vocally, the news media, but others who may want to create dossiers on individuals or ascertain criminal histories, such as prospective employers, private membership organizations, even potential suitors, and, of course, identity thieves.
A) Who is responsible for redacting the information?

1) Many court administrators believe that the attorneys filing the court documents are responsible for redacting personal information. Some states already require this in their local court rules. There are two benefits to this approach. The first is that it eliminates the possibility that the data becomes part of the public record if removed before filing. The second is that it encourages attorneys to discuss potentially sensitive disclosure issues with their clients. Some jurisdictions have considered proposing sanctions against attorneys who neglect to redact personal information in their document filings.
2) Others maintain that the court clerks should be responsible for redacting personal information upon receipt of a filed document, particularly if a court has established its own standards for restricted data. Alternatively, some courts have considered allowing affected parties to request removal of personal data found in their records, to be corrected by court personnel. However, not all courts have the staff to perform this task, nor the budget to hire additional clerks or purchase redaction software.
3) Technology can offer solutions. There are software programs that can redact data from scanned documents, but for many courts the costs are high and the results not always foolproof. Some programs work with specific file types, and some can only extract preset information fields. XML, a computer language designed to transport and store data, has been deemed the best solution for delineating court data by user.

To find the states that offer court records throughout the U.S., search  CourtReference  and select your state of interest. Keep checking our website for additions to the growing list of online court records!

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