Will judicial conference thwart Internet access to court records?

Investigative Reporters and Editors, Inc. The IRE Journal, Mar/Apr 2001 by Smallman, David

LEGAL CORNER

On Nov. 13, 2000, when much of the nation had its attention focused on the disputed presidential election in Florida, an organization responsible for providing policy guidance to the federal judiciary issued a request for public comment on Internet access to court documents. While acknowledging that the paper versions of case files had long been presumed to be open for public inspection and copying unless sealed by court order, the Judicial Conference of the United States announced that it was studying "the privacy and security implications of vastly wider public access" to court records stored on computerized databases (www.privacy.uscourts.gov).

As justification for curtailing public access, the Judicial Conference noted that case files can contain private or sensitive information "such as medical records, employment records, detailed financial information, tax returns, Social Security numbers and other personal identifying information." It went unmentioned that court records also contain information of vital public interest, including cases about aircraft safety; defective tires, medication, baby food, toys; tax, stock, and election fraud; insurance scams; toxic waste dumping; perjury by government officials; illegal arms deals; bank failures; antitrust claims; and civil rights violations.

Practical obscurity

Along with its issuance of the request for comment, the Judicial Conference also released a nine-page "staff report" entitled "Privacy and Access to Electronic Case Files in the Federal Courts" (www.uscourts.gov/privacyn.htm). The centerpiece of this report is a one-sided analysis of case law justifying suppression of private or sensitive information contained in public court files. Because indiscriminate disclosure of this data in "the new electronic environment" may violate an individual's right to privacy, interfere with fair trials, or impede law enforcement efforts, presumptive rights of access dating back to the founding of the Republic are fair game for restriction.

Interestingly, the report fails to discuss the wellestablished test for identifying traditionally protected rights of access under the First Amendment. Other flaws include the report's apparent reliance upon an inapposite 1989 Supreme Court case, which denied access to criminal rap sheets under FOI and, in doing so, reversed a lower court ruling largely on the basis of a dissenting opinion by then-appellate judge Kenneth W. Starr. Dicta in the Supreme Court's decision suggested that a privacy interest may somehow reside in information that was once publicly available, but is now "practically obscure" on the grounds that it has become more difficult to locate. For example, the court referred to "the vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information." But the case in which this novel doctrine emerged only applied to FOIA requests for criminal records compiled by law enforcement authorities. It is not relevant or applicable to publicly filed records maintained by the judical branch.

Case management

The request for public comment coincides with implementation of a powerful case management system, which has been designed to give each federal court the option to create electronic case files either by imaging of paper files or through direct filing of electronic versions of documents. Remote access to the new system is provided through an upgraded version of an existing Webbased system, known as PACER (Public Access to Court Electronic Records). The database currently contains dockets (a list of documents filed in each case) and will soon be expanded to include the full text documents (except for those filed under seal).

Access to documents through PACER requires payment of 7 cents to view, download, or print a page of roughly 54 lines. The Judicial Conference asserts that this fee represents a savings over the current 50 cents-a-page photocopy charge. But its materials say nothing about technological efficiencies inherent in displaying and distributing documents on the Web - a development that calls into question the economic basis for any fee per page view. The Judicial Conference has announced plans to make electronic case files 11 available" at public computer terminals free of charge, but it would apparently condition such access upon perhaps submitting to security or identity checks.

An information monopoly?

Critics of the existing framework for distributing court records suggest that institutional pressures to maintain control over an increasingly valuable database may be a motivating factor behind the present initiative by the Judicial Conference. They point to an information monopoly that is largely unaccountable to the public, and which functions as a self-perpetuating, supplemental funding mechanism beyond what Congress annually appropriates to the judicial branch for operation of the federal court system (approximately $4.3 billion for FY 2001). Interestingly, government agencies are not exempt from PACER fees, so whatever the outcome of the initiative to restrict public access to electronic records, a huge market for that data remains.