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Public Comment on Privacy and Public Access to Electronic Case Files

Administrative Office of the United States Courts

Submitted January 26, 2001

Pursuant to the notice published by the Administrative Office of the United States Courts regarding privacy and public access to electronic case files on November 13, 2000, the Electronic Privacy Information Center (EPIC) submits the following comments and requests to participate in a public hearing.

EPIC is a public interest research center in Washington, D.C. It was established in 1994 to focus public attention on emerging civil liberties issues and to protect privacy, the First Amendment, and constitutional values. EPIC both advocates for the right of privacy and pursues access to government records under the Freedom of Information Act. EPIC appreciates this opportunity to comment on public access to electronic case files (ECF), as it is an issue of increasing public importance and will eventually affect all who have some contact with the courts.

Reconciling the public access and privacy interests associated with ECF involves complex and important issues. Accordingly, the comments below will consist principally of suggestions and narrow points to be considered in any system that provides public access to ECF.

Public access to ECF brings both benefits and risks to the public. Greater public access into the workings of the court system will provide citizens with tools to evaluate the court system. This increased accessibility will foster greater confidence in government and the courts. Public access to ECF will provide more opportunities for scholars, journalists, and researchers to provide insight into the nature of government. Courts will also benefit from the improved efficiency that ECF offer.

As a strong advocate of open government, EPIC supports the right of public access to judicial records found in common law. In Nixon v. Warner Communications, Inc., the Supreme Court noted that, "It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." (1)

To further these important benefits and precedent in law, EPIC believes that public access to court records should be promoted. To the extent that court records are made available electronically, the public interest would be best served by providing comprehensive access to all courts over the Internet rather than the existing "dial-up" systems that are associated with some courts. Further, this access should be available free or at the lowest possible fee to the public.

Public access to ECF creates new benefits for citizens, but it also heightens risks to personal privacy. For administrative purposes and the operation of the legal process, litigants and other persons associated with cases are required to divulge information to courts. This information is sometimes sensitive. It includes personally identifying information, medical records, tax records, information regarding family relations, pre-sentence reports, and plea agreements. Bankruptcy case files contain especially sensitive information, including social security numbers, records of cash flows, account numbers, asset holdings, and debts owed. In electronic form that is publicly accessible this information could be exploited for unintended and harmful secondary uses.

Certain risks of public access to ECF are readily identifiable. Unhindered access to bankruptcy case files may result in a further increase in identity theft. Bankruptcy records provide all the keys that an identity thief needs to take advantage of persons who have already experienced financial difficulty. Often, victims are unaware that the crime occurred until many months after an impostor steals their identity. Victims typically expend considerable time and expense to regain their credit rating and to clear any criminal record that the impostor may have accumulated while posing as the victim.(2)

The convenient availability of medical information, information on intra-familial conflict, and other sensitive information contained in case files present personal privacy problems. Potential employers, insurance companies, stalkers, or other parties simply interested in the misfortune of others could use this information to screen, deny coverage, or to harm former litigants and witnesses.

Data aggregators and marketers may take advantage of compiled records to target advertising at former litigants and witnesses. In many cases, this targeted advertising may serve as a reminder of incidents best forgotten. The disclosure of certain personal information necessary in the context of litigation could unfairly stigmatize a litigant in the pursuit of employment or educational opportunities.

Security is also an important aspect of public access to ECF. Persons with criminal histories may attempt to access case files to erase or alter their arrest history or conviction record. It is foreseeable that a bad actor may attempt to transfer a criminal history to another person on the database. Even worse, there may be attempts to create false criminal records in the names of innocent persons.

The Court has recognized limits to the right of public access in order to address the risk to personal privacy that may occur from these secondary, improper uses of personal information. In Nixon, the Court qualified the general right in favor of access to judicial records, "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 'used to gratify private spite or promote public scandal' through the publication of 'the painful and sometimes disgusting details of a divorce case.'"(3)

In other decisions, the Court has recognized legitimate privacy interests that qualify a right to access public records and other records held by government. In DOJ v. Reporters Committee for Freedom of the Press, the Court denied access to criminal "rap" sheets, aggregate summaries of criminal histories compiled from multiple jurisdictions.(4) The Court in that case found a privacy interest in information that was publicly accessible, but because it was stored in courthouses across the country, the information remained "practically obscure."(5) In denying access to the rap sheets, the Court noted that, "Plainly there is a 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."(6) The Court concluded, "Accordingly, we hold as a categorical matter that a third party's request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen's privacy, and that when the request seeks no 'official information' about a Government agency, but merely records that the Government happens to be storing, the invasion of privacy is 'unwarranted.'"(7)

In Los Angeles Police Department v. United Reporting Publishing Corporation, the Court denied a First Amendment challenge to a statute that limited commercial access to arrest records.(8) The statute allowed the public access to the records for scholarly, journalistic, political, or governmental purposes.(9) The company that challenged the law used arrest records to target adverting to recent arrestees, and argued that the statute unconstitutionally burdened commercial free speech rights. The Court held that the statute simply allowed the government to deny access to information that it possessed.(10)

As stated above, public access to ECF brings both benefits and risks. The challenge is to formulate a scheme that guarantees robust access to public records while also preventing unwarranted invasions into the personal matters of litigants and witnesses. In order to address both of these important interests, EPIC offers the following suggestions.

In the civil case context, the request for comment (RFC) proposed four alternatives for addressing privacy concerns. Of the four, the "public file" alternative addresses both the access interests and the privacy interests most effectively. Under that alternative, parties and court officers will have full access to the entire case file. A second file, redacted for sensitive personal information, will be available at the courthouse and online. The difficulty in this approach lies in the determination of what information should be redacted for privacy interests, and what information is necessary for an understanding of the case.

The other alternatives in the civil context suffer from weaknesses that are more likely to result in privacy violations. The first alternative, which would make the entire file available online, fails to address the risks and likely misuses of information provided to the courts. The third alternative, establishing levels of access to electronic case file information, suffers from weaknesses as well. Under that system, the entire file would remain unredacted for sensitive information at the courthouse. As noted in the RFC, this approach does not limit how case files may be copied or disseminated once obtained at the courthouse.

The last alternative calls for an amendment to the Federal Rules of Civil Procedure (FRCP) to account for privacy and security interests. This alternative may go far in strengthening privacy interests and raising public awareness of the risks involved in the misuse of personal information contained in case files. Currently, no Federal Rule specifically delineates a framework for addressing the privacy interests involved with case files. EPIC recommends that should an amendment to the FRCP be sought, the rule should only extend protections to persons, as opposed to trade secrets that may be asserted by a corporation.

In the criminal context, the RFC proposed two alternatives for addressing privacy concerns. The first would simply deny all public access to criminal case files. This alternative fails to recognize the strong interests of the public in having access to all aspects of criminal prosecutions.

The second alternative addresses the interests of public access and personal privacy protection more effectively. Under this alternative, limited public access to electronic case files would be provided. Sensitive information such as pre-indictment documents, presentence reports, plea agreements, and unexecuted warrants would only be available to the parties and court officers. The public would still have access to the indictment and the final decision of the court.

In the context of bankruptcy files, the RFC contains several alternatives for addressing privacy concerns. The last, a system where sensitive information would be segregated and collected on separate forms protected from public access would address the public access and privacy interests involved most effectively. Sensitive information required in a bankruptcy filing, such as Social Security and account numbers do not impart a meaningful social or political message to the public. These numbers are not needed by the public to evaluate the court system. In this context, the privacy interests in keeping this information secure outweigh the public interest in access.

In the context of files held by appellate courts, EPIC recommends that that the same access rules apply that were employed at the trial court level.

EPIC recommends also that these approaches could be implemented on an experimental basis in several different circuits. Attempting a number of different pilot projects may be the most efficient method of evaluating the consequence of public access to court records. In any case, the public would benefit by a comprehensive review of the system adopted at a fixed time in the future.

Chris Hoofnagle
Staff Counsel
Electronic Privacy Information Center
1718 Connecticut Ave., NW, Suite 200
Washington, DC 20009
202.483.1140 (tel)
202.483.1248 (fax)

1. 435 U.S. 589, 597 (1978).

2. Identity Theft: How It Happens, Its Impact on Victims, and Legislative Solution, Prepared Testimony before the Senate Subcommittee on Technology, Terrorism, and Government Information, 106th Cong. (2000) (statement of Beth Givens, Director, Privacy Rights Clearinghouse), at http://www.privacyrights.org/ar/id_theft.htm (last visited January 25, 2001); excellent resources on identity theft for policymakers and victims are posted on the Privacy Rights Clearinghouse Web Site at: http://www.privacyrights.org/identity.htm.

3. Nixon, 435 U.S. at 598.

4. 489 U.S. 749 (1989).

5. Id.

6. Id. at 764.

7. Id. at 780.

8. 528 U.S. 32 (1999).

9. Id. at 35.

10. Id. at 40.