PLACING COURT RECORDS ONLINE: BALANCING JUDICIAL ACCOUNTABILITY WITH

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from Review of Selected Court Systems with Electronic Access Policies V. CONCLUSIONS &&&&&&&&&&&&&&&&&&&&&&&&&&.. 66 VI. RECOMMENDATIONS &&&&&&&&&&&&&&&&&&&&&&&..72 APPENDICES &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&.. 88 BIBLIOGRAPHY &&&&&&&&&&&&&&&&&&&&&&&&&&........... 127 ii LIST OF TABLES Tables of Compiled Results of State Court Administrators Survey Table 1 3 Electronic Access Policy Development &&&&&&&&&&&&&.. 38 Table 2 3 Information Available by Electronic Access and Method of Access &&. 40 Table 3 3 Access by User, Use of Information, and Fee Information &&&&&& 42 iii LIST OF APPENDICES Appendix A South Dakota Population Density Map &&&&&&&&&&&&&& 88 Appendix B State Constitutions 9 Right to Privacy and Right to Public Access Provisions &&&&&&&&&&&&&&&& 89 Appendix C State Statutes, Caselaw, Rules, Orders and Policies Governing Court Records &&&&&&&&&&&&&&&&&&&. 90 Appendix D Compiled Results of South Dakota Clerk of Court Surveys &&&&&&. 97 Appendix E Compiled Results of South Dakota Bar Association Surveys &&&&&. 105 Appendix F Compiled Results of South Dakota Mailed Public Surveys &&&&&& 109 Appendix G Compiled Results of South Dakota Onsite Public Surveys &&&&&&. 113 Appendix H Compiled Results of Court Users 9 (Attorneys and Public) Surveys by Question and Group &&&&&&&&&&&&&&&&.. 117 Appendix I Survey of State Court Administrators &&&&&&&&&&&&&&.. 119 Appendix J South Dakota Unified Judicial System Court Records Rule, SDCL ch. 15-15A &&&&&&&&&&&&&&&&&&&&&& 121 iv Abstract With identity theft on the increase and the public 9s safety at issue, state and federal courts are reexamining electronic access policies governing their court record information. This reexamination necessarily includes a study of the legal traditions underlying public access to court record information balanced against the privacy interests of the public courts serve. The public 9s trust and confidence in the judicial system demands such a study be undertaken prior to the development and adoption of any court 9s electronic access policy. The goal of this research project is to examine the relevant issues surrounding electronic access and recommend a proposal for such access to South Dakota 9s court records that balances judicial accountability with public trust and confidence, in other words, that permits public access to the activity of the state court system while protecting the privacy interests of the state 9s citizens. This research paper studies the caselaw governing public access and privacy interests involving court records and the electronic access policy guidelines recently issued by federal and state court administrative organizations. Finally, this paper reviews the ideas and solutions proposed in recent law review publications and presentations by persons interested in access and privacy interests. State constitutions 9 privacy and public access provisions and state statutes, court rules and policies governing access to court records were researched and are included as appendices to this paper. Research methodology employed in this project included a survey of South Dakota clerks of court, its citizens, and the attorneys practicing law in South Dakota. This survey collected information regarding current access to clerk of court services and preferred methods of accessing these services in the future. Initially, this survey was undertaken to discover ways to more effectively and efficiently serve South Dakota 9s rural court users. Use of technology that v would offer more widespread access to the court and to court record information was a natural response to this survey. Research performed for this paper also included a survey of all members of the Conference of State Court Administrators to collect data regarding their states 9 electronic access policies and the processes used to develop those policies. Additional research included an in-depth study of four selected states 9 electronic access policies and processes. As part of this study, telephone interviews were conducted with persons in those states who were integral to the development of those access policies to gain additional information about the policy and development process. Based on the research conducted as described above, recommendations are proposed for an electronic access policy governing South Dakota 9s court records that balances judicial accountability with the public trust and confidence of its citizenry. These recommendations include: 1) limiting information that is placed in the public court record to protect personally identifying and sensitive information that does nothing to shed light on the workings of the judiciary but that can be used to facilitate criminal activity such as identity theft and credit card fraud; 2) varying the levels of access of information in the court record to allow greater access to parties and their attorneys as well as other non-court government entities to the ultimate benefit of the public; 3) limiting Internet access to court-generated documents in the court record in keeping with the traditions of public access to government records; 4) providing electronic access to public court records at public terminals located at courthouse facilities to benefit the public and court clerks who assist the public in accessing this information; and 5) providing electronic storage of court records using technology that will serve the dual purpose of permitting electronic access while providing archival quality for electronic storage. vi The South Dakota Supreme Court recently adopted a rule governing its court records statewide. With the exception of Supreme Court opinions and calendar information which are provided on the South Dakota Unified Judicial System 9s website, no state court records are presently electronically accessible in South Dakota. However, the future needs of the state 9s court users and attorneys, and sound business decisions governing operation of court systems, demand that electronic access issues be studied and that a policy be developed that would permit electronic access of South Dakota 9s court records statewide. South Dakota has an opportunity to learn from the policies and processes used by other state court organizations in developing its own electronic court records access policy. This policy will not only achieve both goals of judicial accountability and public trust and confidence, but will benefit South Dakota 9s rural court users with more efficient and effective access to court record information, will benefit its court clerks with better use of their time and work efforts, and will benefit its citizens with more cost-effective use of taxpayer dollars. 1 I. Introduction In January 2004, the South Dakota Unified Judicial System completed a year-long study to ascertain the ways in which citizens and attorneys use clerk services in our rural state and the ways in which they would like to access those services in the future. Delivery of core court services to the rural areas of South Dakota had earlier been identified by the UJS Planning and Administrative Advisory Council as a critical issue deserving of study. The study, which was sponsored in part by the State Justice Institute, included surveys of South Dakota 9s circuit court clerks and its court users, defined as attorneys and the public. The State Court Administrator 9s Office is using these survey responses to develop innovative and effective ways to provide services to the state 9s rural population. The survey responses demonstrated that at least one way to provide better access to clerk services in our rural state is to utilize the recent advances in technology, and specifically, the Internet, for publishing information about the state court system and its services online as well as allowing access to public court record information. However, does placing court records online create new problems for court users? Court records may contain personally identifying information such as social security numbers, names and dates of birth of minor children, financial record information and may also contain sensitive information such as medical records and employment histories. Such information is subject to misuse if widely disseminated. 1 Apart 1. The Federal Trade Commission states that 10 million Americans had their identities stolen in 2003 and each victim spent an average of 530 hours resolving the resulting problems, while the Justice Department reports that identity theft costs United States businesses nearly $50 billion per year in fraudulent transactions. Identity theft is regarded as our country 9s fastest growing computer-related crime. Terry Frieden, U.S. Wraps up Net Crime Sweep , http://money.cnn.com/2004/08/26/technology/cybercrime/index.htm , August 26, 2004 ; see also Jeff Sovern, The Jewel of Their Souls: Preventing Identify Theft Through Loss Allocation Rules , 64 U. Pitt. L. Rev. 343 (2003). Persons involved in commission of these crimes use a variety of personally identifiable information in 2 from identity theft and credit card fraud, public information in court records can be used to commit crimes involving blackmail, extortion, stalking, and sexual assault. Although deemed a privacy interest, the most compelling reason to protect this information is public safety. When developing an electronic court record access policy, is there a conflict that courts must resolve between access to public records and protecting individual privacy interests? A review of recent news articles, legal scholarship on the subject, and some courts 9 electronic access policies would suggest so. Some members of the court community believe that court records contain traditionally public information that should be protected and kept private when disseminating these records electronically. Others believe that the information contained in court records, whether in paper or electronic format, should receive equal treatment when courts develop their access policies so that the same record information is publicly available, regardless of the access method. This has been called the cpublic is public d approach. Rapid advances in technology have challenged courts to balance the interests between public access to their records and protecting the private information within those records when disseminating them electronically. A significant number of both federal and state court systems assuming their victim 9s identity, including social security numbers, financial and credit card account numbers, telephone numbers and addresses. All of this information is currently publicly available in most court records. In February 2003, seven co-conspirators who had used personal information obtained from court records, were indicted on federal fraud and identity theft charges. The seven used the federal courts 9 online database system, PACER, to obtain information about federal inmates and open false financial accounts. In this conspiracy alone, 34 inmates and 20 financial institutions were victimized. Elaine Silvestrini , Federal Prisoners 9 Personal Information Used in Credit Fraud , The Tampa Tribune, Feb. 8, 2003. In Cincinnati, Ohio, a speeding ticket posted on a court clerk 9s website provided an identity thief with a person 9s social security number, address, height, weight, birth date and his signature. The thief accumulated $11,000 in credit card theft before his arrest. Jennifer Lee, Dirty Laundry, Online for All to See , New York Times, September 5, 2002. 3 have taken advantage of the technological progress and placed their court records online. Some of these same court systems have recently removed their records from Internet access due to privacy concerns, particularly concerns about identifying information. 2 State and federal court systems are currently in various stages of redeveloping and amending their electronic access policies to address these issues. Although information in court records has long been held to be public information, available for anyone 9s inspection in the clerks 9 offices, making these same records available in electronic format, for inspection at any time by anyone worldwide, can have negative and sometimes, unforeseen consequences. Reducing or eliminating negative consequences in developing and implementing an electronic access policy is a goal for any court system. Court systems like South Dakota 9s, that still have their records in paper format, can learn by studying the processes and the products of court systems with recently retooled electronic access policies in place. 3 2. On July 1, 2003, the clerk of court in Butler County, Ohio was ordered to remove domestic relations court records from Internet access due to concerns regarding personal information, including social security numbers and financial information within those records. Janice Morse, Web Cutoff Causes Butler Backlash , Cincinnati Enquirer, July 8, 2003; Janice Morse, Should Records Go On 8Net?, Cincinnati Enquirer, July 13, 2003; Janice Morse, Separating Court Records for Net Access May Be Costly , Cincinnati Enquirer, July 24, 2003; Janice Morse, Clerk Asks For Web Site Ruling , Cincinnati Enquirer, October 1, 2003. On November 25, 2003, Florida 9s Supreme Court Chief Justice issued an 18-month moratorium on posting state court trial documents on the Internet requiring the Manatee County clerk of the court to disable electronic access to court records previously posted pursuant to a legislative mandate. Laurie Cunningham, Florida Freezes Posting of Online Court Records , Miami Daily Business Review, December 2, 2003. The Loudon County, Virginia clerk of court suspended electronic access to court records, amidst concerns of identity theft involving social security number and other personal information, just nine days after putting the county 9s land records online. Dawn Chase, Loudon Halts Online Land Records Access , Virginia Lawyers Weekly, August 11, 2003. 3. Only South Dakota Supreme Court opinions and calendar information, but not court files of any kind, are available online and they are posted on the South Dakota Unified Judicial System website. See http:www//sdjudicial.com. 4 This research paper examines the underlying concerns inherent in making court records available electronically, which necessarily includes balancing public access to the courts with protection of our court users 9 individual privacy interests. This paper begins with a historical review of the legal doctrines involved in the public 9s access to court records as well as the current legal scholarship in this area, particularly as it concerns electronic access and privacy issues. This paper also looks at the court 9s interest and authority in protecting the privacy of its litigants and third parties named in court records. The research conducted and presented in this paper includes the surveys of South Dakota circuit court clerks and court users, previously mentioned. It also includes a survey of members of the Conference of State Court Administrators regarding the current status of their court record access policies, as well as telephone interviews of persons involved with the creation and adoption of their state court systems 9 electronic access policies. Against a background of the applicable legal doctrines, the relevant literature, and the compiled research results, this paper conducts a comparative analysis of selected electronic access policies that have been recently adopted or amended by their state courts. Finally, this paper proposes a policy recommendation for the South Dakota Unified Judicial System 9s court records that will both improve access to court records statewide and protect court users 9 private identity information. It is believed that this recommended policy strikes the appropriate balance between judicial accountability and public trust and confidence. 5 II. Review of Relevant Literature A. Caselaw Addressing Court Records, Public Access, and Privacy Interests 1. United States Supreme Court Decisions In 1978, in Nixon v. Warner Communications, Inc., a case involving President Richard M. Nixon 9s cWatergate d taped conversations, the United States Supreme Court cited cases dating back to the 1800 9s for the proposition that the federal and state courts of this country recognize a general common law right to cinspect and copy public records and documents, including judicial records and documents[.] d 4 The Court acknowledged that the interest in making these records publicly available is the ccitizen 9s desire to keep a watchful eye on the workings of public agencies. d 5 Today, the field of court administration recognizes that interest as judicial accountability, one of five trial court performance standards. The Court explained the limitations of this right of access: It is uncontested, however, that the right to inspect and copy judicial records is not absolute. Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not 8used to gratify private spite or promote public scandal 9 through the publication of 8the painful and sometimes disgusting details of a divorce case. 9 Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption, or as sources of business information that might harm a litigant 9s competitive standing. 6 The Court further noted that access to court records is a decision left to the sound discretion of the courts, in light of the relevant facts and circumstances of the particular case. In this 4. 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). 5. Id . at 598. 6. Id . (internal citations omitted). 6 particular case, the Court held that Nixon 9s interest in privacy outweighed any public interest of the press, particularly when the only purpose articulated for the release of the tapes was their potential for commercial exploitation. In 1989, in United States Department of Justice v. Reporters Committee for Freedom of the Press, a case involving criminal crap sheets d summarized in a computerized database, the United States Supreme Court addressed the privacy issue where records were publicly available at their source but had been compiled into computerized lists. 7 Had the transformation of public information into a compiled database affected the privacy interest? The Court recognized ca 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 county and a computerized summary located in a single clearinghouse of information. d 8 The Court noted that the privacy interest in public information is substantially affected when the information can be accumulated and stored in a computer long after the public interest in that information has been forgotten. In regard to the government accountability purpose supporting access to public records, the Court stated that purpose: is not fostered by disclosure of information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency 9s own conduct. . . . [I]n the typical case in which one private citizen is seeking information about another 3 the requester does not intend to discover 7. 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). This case was decided under the federal Freedom of Information Act which is not applicable to court records. 5 U.S.C. §551(1)(B)(2001). The decision is included in the discussion in this paper, however, because it provides the Court 9s reasoning, analogous to court records, on the issue of whether a government record which is public as an individual record changes character and becomes less public when combined with other public records into a computerized database of information. 8. Id . at 764. 7 anything about the conduct of the agency that has possession of the requested records. d 9 The Court described the public 9s interest in releasing information as cshedding light on the conduct of any Government agency or official. d 10 Courts have generally held there is a presumption of public access to court records and have made those records publicly available where the purpose of access is related to public scrutiny of the judicial process. On the other hand, courts protect personal information in the same public records where the purpose of access is related to commercial exploitation or potential misuse of the information with no public oversight purpose. 11 In 1977, in Whalen v. Roe, the United States Supreme Court decided a case involving compiled records of the names and addresses of New York state citizens who had received prescriptions for certain scheduled drugs. 12 Although the Court upheld the constitutionality of the statutes allowing the state to record this information in centralized computer files, the Court addressed the privacy interest in personal information in compiled government records: We are not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and the enforcement of the criminal laws all require the orderly preservation of great quantities of information, much of which is personal in character and potentially embarrassing or harmful if disclosed. The right to 9. Id . at 773. 10. Id . 11. Id . at 780 (when the request seeks no 8official information 9 about a Government agency, but merely seeks records that the Government agency happens to be storing, the invasion of privacy is 8unwarranted. 9). 12. 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). 8 collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. 13 The Court further recognized that in some circumstances, the cstatutory or regulatory duty to avoid unwarranted disclosures d of collected public data is rooted in the Constitution. 14 Justice Brennan, concurring in the Whalen opinion, foresaw the danger of indiscriminate disclosure of public records made accessible on a grander scale by technology. He wrote: What is more troubling about this scheme, however, is the central computer storage of the data thus collected. Obviously, as the State argues, collection and storage of data by the State that is in itself legitimate is not rendered unconstitutional simply because new technology makes the State 9s operations more efficient. However, as the example of the Fourth Amendment shows, the Constitution puts limits not only on the type of information the State may gather, but also on the means it may use to gather it. The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology. 15 Today, almost 30 years after Justice Brennan wrote these words, court systems stand at the crossroads of making vast amounts of public court record information easily accessible through computerized databases and Internet use, while searching for csome curb on such technology d or 13. Id . at 605. 14. Note, however, that the United States Supreme Court has never ruled on a constitutional right of access to court records. United States v. McVeigh, 119 F. 3d 806, 811 (10 th Cir. 1997) ( cThere is not yet any definitive Supreme Court ruling on whether there is a constitutional right of access to court documents and, if so, the scope of such a right. d). However, some lower courts have recognized a First Amendment right to access to court records. See In re National Broadcasting Co., 828 F. 2d 340, 343 (6 th Cir. 1987) (press 9 right of access to judicial records); In re Continental Illinois Securities Litigation, 732 F. 2d 1302, 1308-09 (7 th Cir. 1984) (public 9s right of access to court documents). The Supreme Court has a long history of recognizing a First Amendment right belonging to the public and press to attend court proceedings. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (leading case). 15. Id . at 606-07. 9 other methods to protect the privacy interests of litigants and third parties named in those records. 2. State Court Decisions A few state court decisions have addressed court records and the impact technology has on their compilation and distribution, as well as individual privacy rights. In 1994, a California appeals court reversed a lower court 9s decision that a seller of criminal background information was entitled to periodic copies of computer tapes created for the Los Angeles municipal court information system. 16 The database included the name, birth date, zip code, case number, date of offense, charges filed, pending court dates, and case disposition for every person against whom criminal charges in the municipal court system were pending. By statute, such compiled information was accessible only by certain persons in the course of their duties and to others who showed a compelling need. 17 The statutes did not provide similar restriction on the same information located in an individual criminal file. Since the seller showed no need other than his pecuniary interests in the records, the appellate court found that the statute protected the compiled information from disclosure and the state constitutional right to privacy protected defendants from unauthorized disclosure of their criminal information. 18 The seller did not prevail. The court specifically noted ca qualitative 16. Westbrook v. County of Los Angeles, 27 Cal. App. 4 th 157, 32 Cal. Rptr. 2d. 382 (Cal. Ct. App. 1994). 17. Despite the presence of these statutes, the seller had been able to collect this information by computer tape monthly from the municipal court system. He now complained that if he were denied access, he would have to travel to 46 municipal court locations to obtain it and that no one would be able to afford what he would have to charge for the information. Id . at 160. 18. The court noted that the constitutional amendment that added a privacy right was motivated by a person 9s ability to control dissemination of personal information. In 10 difference between obtaining information from a specific docket or on a specified individual, and obtaining docket information on every person against whom criminal charges are pending in the municipal court. d 19 The court further noted that the aggregate nature of the information which made it valuable to the seller was the same quality that made its dissemination dangerous. The court concluded as the United States Supreme Court has, that the right of access to public court records is not absolute. cWhen that right conflicts with the right of privacy, the justification supporting the requested disclosure must be balanced against the risk of harm posed by disclosure. d 20 In 1999, the Colorado Supreme Court, sitting en banc, also addressed a case involving an electronic database of court records, prompted by a request for bulk data from a private entity in the business of selling such information to the public. 21 The information included criminal and civil case record information, such as judgment debtor and creditor information, domestic case filings information, and also included social security and driver 9s license numbers. Some of this data was protected by statute and the seller requested the State Court Administrator 9s Office create an electronic database excluding the statutorily protected confidential information. 22 The explanation of the amendment, the state election brochure included this statement: cThe proliferation of government and business records over which we have no control limits our ability to control our personal lives. Often we do not know that these records even exist and we are certainly unable to determine who has access to them. d Id . at 166. 19. Id . at 165. 20. Id . at 166. 21. Office of the State Court Administrator v. Background Information Services, Inc., 994 P. 2d 420 (Colo. 1999). 22. Here, as in Westbrook , the SCA denied the request after the seller had been receiving computerized database records for years. In refusing to deliver additional tapes, the SCA cited two specific concerns: 1) trial courts could seal records in criminal files after the 11 seller asserted that the state 9s public records law created an implied duty for the SCAO to do so. The lower court ruled in seller 9s favor and the Colorado Court of Appeals affirmed. The Colorado Supreme Court held on appeal that no state statute required these otherwise public records to be made available to the public in bulk form and absent such, the administrative policies of the Supreme Court governed release of these records. A 1998 Chief Justice Directive permitted the State Court Administrator to deny the request for release of bulk electronic data stored by the state judicial branch. 23 Again, as in other cases previously discussed, the Colorado Supreme Court noted that courts are the official custodians of their own records, including records compiled into an electronic database. And again, as in other cases, the court recognized that access to electronic bulk data raises very different issues than access to individual case files which are open to public inspection upon request. The court held that c[w]hether access to bulk data should be released and to whom is a matter of important policy that necessarily involves the balancing of individual privacy concerns, public safety, and the public interest in fair and just operation of the court system. d 24 information had been delivered to seller, making sealed court information still available to the public, and 2) some trial court minute orders contained sexual assault victims 9 names and the database release of these orders to seller violated state statutes restricting release of victim information. Id . at 423. 23. This case has an interesting procedural history. The Chief Justice Directive was issued following the SCA 9s appeal of the case to the Colorado Court of Appeals but prior to that court 9s review of the case. Nevertheless, the appeals court affirmed the lower court 9s ruling that the SCA was obliged to create the database for seller. 24. 994 P. 2d at 429-30. The Court further held the SCA was not required to create a csanitized, d or nonconfidential, version of its computerized records solely for purposes of disclosure. Id . at 432 (citing cases). 12 The private information within public court records, unless sealed by court order or statutory authority, is open to anyone willing to walk into the courthouse, stand in line, sort through the records in the county clerk 9s office, and pay copying charges. Courts have indicated that the cpractical obscurity d of this information, that is, the inherent difficulty in obtaining it, has helped protect its privacy. 25 At least for paper court records, the traditional safeguards within the court 9s practices have been adequate to protect individual privacy interests. With rapid advances in technology and the ease of availability and dissemination of large amounts of data found in court records, and especially compiled data, traditional protections based on cpractical obscurity d are gone. The search for information can now be performed at a computer terminal by anyone anywhere; the information is available in a matter of minutes and in massive amounts, and the cost is minimal. The qualitative change in the method of access eradicates the naturally occurring privacy protections in place with paper records in clerks 9 offices and demands reexamination of court records access policies. B. Response by Federal and State Court Administration Traditionally, access issues have been determined by judges on a case-by-case basis or by the control the clerk exercises, at the direction of the court, as custodian of these records. Technological advances have changed the information world so quickly and so recently there has been little time for caselaw to develop that adjusts the balance between publicly accessible electronic court records and protection of individual privacy interests. With no extensive body of caselaw to draw from, court administrators, not judges, find they must develop policies for 25. 489 U.S. at 762. 13 access to records that will protect private and sensitive information. 26 Electronic access and concomitant privacy issues face their court systems today and these issues will not wait for caselaw to develop. Such policies are being developed following notice, public participation and comment, and careful consideration of not only the public/privacy issues but, as with all good administrative decisions, the costs and benefits to the public and to the court system. 1. Federal Court Administration Organization Guidelines At the federal court level, in April 2003, staff of the Office of Judges Programs of the Administrative Office of the United States Courts updated its 1999 report entitled Privacy and Access to Electronic Case Files: Legal Issues, Judiciary Policy and Practice, and Policy Alternatives . 27 The report recognized that two different approaches to electronic court records were emerging. The first position, the so-called cpublic is public d approach, assumes that the format of the record should not alter the right of access and that current court practices, mainly orders to seal documents, are adequate to protect privacy interests. The second position relies on the cpractical obscurity d of paper records to keep information private while acknowledging that there may need to be limits on information in court records that are distributed electronically. The staff report proposed the federal courts take a third approach that would allow varying levels of access to different stakeholders with electronic access to the entire file available at the clerk 9s office, but not available on the Internet. 26. Peter A. Winn, Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information , 79 Wash. L. Rev. 307, 321 (2004). 27. Robert Deyling, Privacy and Access to Electronic Case Files: Legal Issues, Judiciary Policy and Practice, and Policy Alternatives, Office of Judges Programs, Adm. Office of the U.S. Courts (1999 & April 2003 Suppl.). 14 In September 2001, the Judicial Conference of the United States, the principal policy- making arm of the federal court system, adopted a privacy policy for federal civil and bankruptcy court records which is essentially the cpublic is public d approach. However, the policy offers restrictions on information in both the paper and electronic copies of the record. The policy places the burden of protecting private information in court records squarely on the litigants and their attorneys who file documents with the court, indicating they should examine documents carefully and redact certain information prior to filing and, where necessary, make appropriate motions to protect them from electronic access. Although the Judicial Conference policy recommendations are nonbinding, they are usually followed by federal courts. The Conference delayed expanding its policy to include criminal files for two years while a pilot program in eleven federal courts studied the potential impact of electronic access to these records. A report on the pilot study was published May 7, 2003. 28 On March 16, 2004, the Judicial Conference approved implementation guidance and a model local rule for electronic access to criminal files, noting that the pilot project concluded that the benefits outweigh any risk of potential harm from enhanced electronic access. 29 This process also included public hearings and receipt of over 240 comments from persons representing public, private and government interests. The public comments noted the many benefits of electronic access to these court records. One frequently mentioned benefit is appropriate to the needs of South Dakota 9s rural 28. David Rauma, Remote Public Access to Electronic Criminal Case Records: A Report on a Pilot Project in Eleven Federal Courts, Prepared for the Court Administration and Case Management Committee of the Judicial Conference (2003). 29. The implementation guidance for federal courts and model local rule are available at http://www.uscourts.gov/Press_Releases/implement031604.pdf and http://www.uscourts.gov/Press_Releases/modellocalrule031604.pdf . 15 court users, that is, that electronic access clevels the geographic playing field d by allowing persons located in great distances from the courthouse to access public information. The federal court policy as to criminal records, as with its policy for civil and bankruptcy records, places the obligation on the litigants and their attorneys to partially redact specific personal identifying information before filing documents with the court. The policy advises courts to post a notice to that effect which also states that court clerks will not review a party 9s filings for redaction. The policy states courts will need to begin to routinely check documents the court itself prepares and redact personal information in those documents. Specifically, whether the document is filed on paper or electronically, the policy requires the filer to redact the following: Social Security numbers to the last four digits; Financial account numbers to the last four digits; Names of minor children to the initials; Dates of birth to the year; and Home addresses to city and state. 30 The policy also permits parties to file an unredacted document under seal. 31 The court may still require the party to file a redacted copy for the public record. The privacy policy also protects additional information that may encompass personal security concerns and advises court users that they may wish to file a motion to seal any of their 30. Guidance for Implementation of the Judicial Conference Policy on Privacy and Public Access to Electronic Criminal Case Files, Agenda E-6 (Appendix A), March 2004 [hereinafter Guidance for Implementation ]. 31. This complies with the E-Government Act of 2002, Publ. L. No. 107-347, §205(c)(3)(iv), 116 Stat. 2899-2913-15. The Act directs the federal court system to implement access to the Internet by 2004 and directs the Judicial Conference to promulgate rules to address concerns of privacy and security of court record information in light of best practices of federal and state courts. 16 documents containing this information. This information is listed in the Judicial Conference Policy on Privacy as follows: Any personal identifying number, such as driver 9s license number; Medical records, treatment and diagnosis; Employment history; Individual financial information; Proprietary or trade secret information; Information regarding an individual 9s cooperation with the government; Information regarding the victim of any criminal activity; National security information; and Sensitive security information as described in 49 U.S.C. §114(s). 32 No document that is the subject of a motion to seal, nor the motion itself, will be accessible by the public in any form until the court has ruled on the motion. With the criminal records policy, the court further restricts some record information from becoming public, whether it is in the paper file or electronically-accessed file. 33 It should be noted that the Conference also adopted a policy to make transcripts of court proceedings available electronically. An effective date on this policy is delayed while its impact on court reporter compensation can be assessed. 2. State Court Administration Organization Guidelines On August 1, 2002, at its annual conference in Rockport, Maine, the Conference of Chief Justices and Conference of State Court Administrators voted unanimously to adopt a set of guidelines after two years of notice, public comment, and careful consideration of all of the 32. Guidance for Implementation , supra note 30. 33. These documents include unexecuted summonses or warrants of any kind, pretrial bail or presentence investigation reports, statements of reasons in the judgment of conviction, juvenile records, documents containing identifying information about jurors or potential jurors, financial affidavits, ex parte requests for authorization of services pursuant to the Criminal Justice Act, and sealed documents including motions for downward departure for substantial assistance and plea agreements indicating cooperation. 17 issues involved. 34 Developing CCJ/COSCA Guidelines for Public Access to Court Records: A National Project to Assist State Courts was a project by the National Center for State Courts and Justice Management Institute with support from the State Justice Institute and leadership from the report authors, Martha Wade Steketee and Alan Carlson. 35 They report that during the period of public comment, they received over 130 comments from persons interested in access to court records. Draft versions were reviewed at several meetings of the CCJ and COSCA and at combined meetings of these two state court administrative organizations. The result is a set of guidelines and a process that states can use to develop their own policies regarding access to state court records. 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 and suggest mechanisms for doing so. The commentary to the guidelines suggests this information includes social security numbers, financial identifiers, medical records, and information about minors and third party witnesses and victims. 36 The guidelines make no distinction regarding the end use of bulk downloads of court records data. 34. Resolution 33, endorsing and supporting Public Access to Court Records: Guidelines for Policy Development by State Courts . The Conference of Chief Justices and Conference of State Court Administrators. August 1, 2002. 35. Martha Wade Steketee & Alan Carlson, Nat 9l Ctr. For State Courts & Justice Mngmt. Inst., Developing CCJ/COSCA Guidelines for Public Access to Court Records: A National Project to Assist State Courts (2002). 36. Id ., Commentary to §§ 4.50 and 4.60 . 18 Some state courts, such as Indiana, Minnesota, Nebraska, Maryland, Alaska, Ohio, New Hampshire and South Dakota, have used the guidelines as a starting point to develop their court records rules and are in some stage of the process of adopting them. Each state makes changes to the CCJ/COSCA guidelines that are relevant to its state laws and its form of court records. 37 Many of these state court systems and others have created commissions that are currently studying the public versus privacy issues involved in electronic access to these records. 3. Canadian Courts Discussion Paper The Canadian Judicial Council has also recently released a comprehensive discussion paper on the issue of electronic access to court records. 38 In March 2002, the Council received a report of these issues from its Administration of Justice Committee. The Council referred the report to the Judges Technology Advisory Committee for its contribution, which resulted in the discussion paper. The paper acknowledges the scrutiny that these issues have recently received in the United States where electronic access to court records is more advanced than in Canada. The JTAC did not recommend a model policy, citing the complexity of issues and need to confer with interested stakeholders, but did provide a thorough framework for the development of an electronic access policy. Review of Canada 9s discussion paper reminds us of the global concept to these issues which is an important consideration as our world cshrinks d with ever-increasing advances in technology and expansion of the information world. 37. For example, South Dakota 9s adoption of its version of the guidelines, effective July 1, 2004, references only its paper records as electronic access to court records is not yet available. See Appendix J, South Dakota Codified Laws ch. 15-15A (2004). 38. Judges Technology Advisory Committee, Canadian Judicial Council, Discussion Paper on Open Courts, Electronic Access to Court Records, and Privacy (May 2003). 19 In each of these court administrative documents, the relationship between two fundamental values is recognized and attempts are made to balance them: cthe right of the public to transparency in the administration of justice and the right of an individual to privacy. d 39 Legal commentators have also recently addressed these interests as they relate to placing court records online and making them available worldwide. C. Legal Commentary 3 Proposed Solutions Many authors of law review articles on this topic are not only discussing the legal issues in the public records versus private interests debate, but are proposing practical solutions to resolve the issues and create a system of rules that would protect personal information while maintaining the public court record. Professor of Law Daniel J. Solove declares that c[i]t is time for the public records laws of this country to mature to meet the problems of the Information Age. d 40 He writes that a federal baseline, via a congressional act, must be established to govern public records in all states, with the ability for states to adopt even stricter protections of private information in public records. Solove asserts that the federal Privacy Act provides a basis for such legislation but would require amendment to apply to states and to provide more meaningful protection. 41 He advocates regulating the amount of personal information that is placed into public files in the first instance and making information accessible only for certain purposes. 39. Id . 40. Daniel J. Solove, Access and Aggregation: Public Record, Privacy and the Constitution, 86 Minn. L. Rev. 1137 (June 2002) (Symposium issue: Modern Studies in Privacy Law) [hereinafter Solove ]. 41. 5 U.S.C. §552a(b). The Privacy Act was enacted in 1974 following years of apprehension and study of computerized databases. However, the Act only applies to the public sector and thus, does not provide the control over use of social security numbers that some had hoped. Private sectors may still collect, disclose and sell social security 20 Solove supports the enactment of use restriction laws that would limit the use of information contained in public records to its original intended use, that of transparency of government actions. Solove explains that the principle of transparency of government actions has undergone an cideological drift d and that c[t]ransparency today has become a tool for powerful corporate interests to collect information about individuals to further their own commercial interests, not to shed light on the government. d 42 Use restriction laws would not permit personal information in public records to be used for commercial purposes, allowing information brokers to combine data into gigantic online databases that Solove calls cdigital biographies. d 43 Such use restriction laws would certainly be permissible under the United States Supreme Court 9s decision in Nixon v. Warner Communications, Inc. in which the right of access number information. Moreover, the Act does not extend its protections to court records. 5 U.S.C. §551(1)(B) & 552(f). For the past several years, Congress has been studying legislation that would protect social security number information in public records, including court records. This legislation, H.R. 2971, would require redaction of social security numbers from court records within two years of enactment. Former COSCA President and Missouri State Court Administrator, Michael L. Buenger, testified June 15, 2004, before Congress regarding the impact such legislation would have on state courts and offering COSCA 9s willingness to work with Congress toward a viable solution. State court administrators realize it is not a question of whether this legislation will be enacted, but when it will be enacted, and are currently taking proactive steps to protect social security number information in their court records. 42. Solove at 1199. 43. Inaccurate information combined piecemeal by large information brokers can impact a nation and the world, beyond the problems of an individual 9s identity theft. Solove cites errors in the data supplied to Florida election officials by information broker ChoicePoint that prevented many persons from voting in the November 2000 presidential election when these persons were incorrectly identified as felons. 21 to public records was limited to proper use of the information in those records and where access was denied where such use was only for commercial exploitation. 44 Kristen M. Blankley, a recent Ohio State Law School graduate, examines several solutions that also include enacting legislation to restrict the information that initially is placed into court records. 45 She proposes that this legislation completely ban the following information from court records: social security numbers, bank account and credit card numbers, driver 9s license numbers, addresses, and the full names of persons involved in domestic relations matters, such as divorce, child custody and adoption. She suggests that action by state legislation, rather than individual district court rules, would prevent each district 9s promulgating different rules that may lead to forum shopping and unequal access. However, court rules proposed by a State Court Administrator 9s Office and adopted by a state 9s Supreme Court would alleviate these concerns and be a more appropriate way to govern court records than acts by state legislators. In South Dakota, at least, court-made rules carry the same weight and authority as statutes enacted by the legislature. 46 Blankley suggests if a particular record warrants the use of personally identifying information that this information not be made available for public viewing, either in the paper or 44. Supra note 4. 45. Kristen M. Blankley, Are Public Records Too Public? Why Personally Identifying Information Should be Removed from Both Online and Print Versions of Court Documents, 65 Ohio St. L. J. 413 (2004) [hereinafter Blankley ]. Other solutions discussed by Blankley are increased use of protective orders to seal documents within court records, the proposal of model rules to guide federal and state legislation, such as those developed by CCJ/COSCA, see note 35, supra , and accompanying text, and amendment of federal and state constitutions to include right to privacy provisions. Id . at 445-49. Several state constitutions currently provide for the right to privacy. See Appendix B. 46. S.D. Const., Art. V, §12; SDCL 16-3-2. 22 electronic court records. She proposes that the burden for redacting sensitive information from these court records be placed squarely on the attorneys when they file documents with the court. 47 The Judicial Conference guidelines discussed in Section II, B of this paper also place this responsibility for removing personally identifying information upon the attorneys filing the documents. 48 This will require attorneys to become much more sensitive to the issues of privacy of their clients and communicate the risks of court record disclosures to their clients, so that an informed decision about disclosure and redaction may be made. It is assumed that litigants filing documents pro se will be responsible for redacting their own information. Blankley further proposes that court clerks be responsible for redacting this information from any previously filed documents that would be accessible via the Internet. To ensure these redaction requirements are complied with, Blankley offers two methods of enforcement. First, an individual could petition the court for removal of personally identifying information she finds in her court documents. This remedy would be available to anyone, without having to show harm as a result of the published information. Second, Blankley proposes a new cause of action against attorneys who place information into court documents without redacting personally identifying information. Blankley proposes that this remedy would only be available upon a showing of actual harm, whether it be economic or psychological, and would be available against any attorney who placed the information in the court files, even those who did not represent the person harmed. Blankley indicates this remedy should also be available to victims of stalking or harassment stemming from the victim 9s personal information 47. Blankley at 449-50. 48. Supra note 29 and accompanying text. 23 being placed into court records and disseminated online. Presumably, under Blankley 9s proposal, the court clerks who redact information in previously filed documents would be immune from liability under the protection of sovereign immunity, though that may not be the case in all states. 49 Beth Givens, Director of the Privacy Rights Clearinghouse, proposes several solutions to reduce the negative consequences of making court records available electronically. 50 She first suggests that courts limit what is posted online to indexes, registers and calendars. 51 Ms. Givens also suggests that courts use only those automation systems that are capable of redacting sensitive information so that this can be viewed by court personnel but blocked from public view. 52 Thirdly, Givens implores courts to adopt rules that protect such information and 49. For example, in South Dakota, clerks would be immune from suit under sovereign immunity principles only if redacting information in court documents is considered a discretionary duty. It is obvious that such duty would not be discretionary, but would be ministerial and governed by either a state law, court rule or policy of the administrative office of courts, depending on how the state 9s court record access policy was implemented. See Hancock v. Western South Dakota Juvenile Services Center, 2002 SD 69, 647 NW2d 722, 726 ( cState employees are cloaked in sovereign immunity when performing discretionary acts because 8such discretionary acts participate in the state's sovereign policy-making power. 9 Conversely, 8a state employee who fails to perform a merely ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such a duty. 9 d). 50. Beth Givens, Public Records on the Internet: The Privacy Dilemma , Privacy Rights Clearinghouse, San Diego, CA, 2002. 51. This is also suggested by family law attorney Laura W. Morgan who advocates this ctwo- tier d access approach for particularly sensitive data, including divorce records. See Laura Morgan, Strengthening the Lock on the Bedroom Door: The Case Against Access to Divorce Court Records On Line , 17 Journal of the American Academy of Matrimonial Lawyers 45 (2001). 52. This suggestion is an excellent one as it allows the work process to drive the use of technology, rather than the other way around. It is also discussed by Gregory M. Silverman, Rise of the Machines: Justice Information Systems and the Question of Public Access to Court Records Over the Internet , 79 Wash. L. Rev. 175 (2004) [hereinafter 24 examine their policy objectives in making their records available online. She also recommends that the information broker industry itself needs regulating and accountability, something that does not currently exist except for the credit industry under the Fair Credit Reporting Act. 53 Dr. Karen Gottlieb, in a paper presented in 2004 to an international group in Sweden concerned with individual privacy on a global scale, addressed another possible solution to the public versus private issue in court records that is similar to the use restrictions discussed by Professor Solove. 54 Dr. Gottlieb suggested that courts define permissible uses of the court records and state those uses in a data dissemination contract between the court and the end user of the information. 55 She suggests that such a contract be modeled on the Fair Credit Reporting Act 9s compliance procedures to assure that information would only be used to promote and enhance the justice system. 56 Downstream users of the data would also be required to certify the Silverman ] and is addressed in greater detail within this paper, infra in Sections V and VI, Conclusions and Recommendations. 53. The Fair Credit Reporting Act, 15 U.S.C. 1681, is governed by principles which include openness, access to data, correction of data, purpose specification, collection limitation, use limitation, security and accountability. 54. Karen Gottlieb, Using Court Record Information for Marketing in the United States: It 9s Public Information, What 9s the Problem? Paper presented at the International Workshop on WHOLES 3 A Multiple View of Individual Privacy in a Networked World, Swedish Institute of Computer Science, Sigtuna, Sweden, January, 2004 [hereinafter Gottlieb]. 55. In 1995, Kevin P. Kilpatrick also advocated the use of access contracts between courts and users of electronic court records and provided sample access contracts that courts could revise and adopt for their use. Kevin P. Kilpatrick, The Electronic Handshake: Public Access to Court Databases , National Center for State Courts, 1995 at Appendix C. [hereinafter Kilpatrick ]. 56. Gottlieb , supra note 54. Dr. Gottlieb states that courts could easily import language directly from portions of the Fair Credit Reporting Act to protect and restrict the use of court record information. In her paper, she provides specific language from the Act that could be used. 25 purpose for which they seek the information and that they will use the information for no other purpose. The original end user would be liable for civil penalties for improper use of information they directly obtained from the court as well as any improper downstream use of information that they share. Gottlieb 9s proposal also accommodates access of records that are sold by courts to bulk data distributors. Dr. Gottlieb spoke of the erosion of public trust and confidence that can occur when courts do not take steps to protect their record information: Most people do not realize the information contained in the majority of court records is open to the public. They may suspect the grocery store is selling their buying information for marketing purposes, but they would never think their local court is giving away or selling their court information for a similar purpose. 57 As was learned through the results of the surveys of court users and as is discussed in greater detail in Section IV, Findings and Analysis of this paper, infra , South Dakota courts enjoy a high level of public trust and confidence by its state citizens. When fashioning a policy for electronic access to court records, South Dakota is unwilling to adopt rules that would expose confidential or protected information, thus jeopardizing the relationship currently enjoyed with South Dakota court users. However, close examination of the proposals offered by these legal commentators provides some workable suggestions for a South Dakota policy to improve public access to court records and better serve its rural population while protecting private information. 57. Id. 26 III . Methodology Apart from the literature review of relevant cases, state and federal co

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