Electronic Filing and Privacy: Issues, Problems Solutions

Presentation Outline for AALS Annual Meeting
Robert Deyling, Administrative Office of the U.S. Courts
January 2001

Part 1: Overview of The Law on Public Access to Federal Court Case Files

1. The Constitutional and Common Law Tradition of Access to Case Files
   1. The Common Law Presumption of Public Access: The right of public access to case files is a subset of the more general public “right to know” about the workings of government. The Supreme Court recognized this right in Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), holding that there is a common law right “to inspect and copy public records and documents, including judicial records and documents." The courts have expressed the salutary purposes of public access in various ways, focusing on the public’s need to monitor the functioning of the courts. Federal courts have noted, for example, that public access to court records:
      • “allows the citizenry to monitor the functioning of our courts, thereby insuring quality, honesty, and respect for our legal system.” In re Continental Illinois Securities Litigation, 732 F.2d 1303, 1308 (7th Cir. 1984); and
      • “diminish[es] possibilities for injustice, incompetence, perjury, and fraud” and promotes “a more complete understanding of the judicial system and a better perception of its fairness;” Republic of the Philippines v. Westinghouse Electric Corp, 949 F.2d 653, 660 (3d Cir. 1991).
      • similar quotations are found in many state cases, which often cite Nixon as the key case on public access to court records.
   2. The Supreme Court also has recognized a limited First Amendment right of access to judicial proceedings, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-78 (1980), and lower federal courts have extended this right to civil proceedings and records. See, e.g., Publicker Industries v. Cohen, 733 F.2d 1059, 1067-70 (3d Cir. 1984) (holding that the reasons supporting a First Amendment right of access to criminal proceedings apply with equal force to civil trials and case file documents).
   3. The public's right of access to court records antedates the Constitution, stemming directly from the English common law. As early as 1372 the English Parliament enacted laws providing for a public right of access to court records. Interestingly, under English common law, all persons had the theoretical right to inspect and copy judicial records, but only persons who had an evidentiary or proprietary interest in particular court records were permitted to enforce the right, generally through writ of mandamus. In contrast to the English practice, courts in the United States have not limited application of the common law right to persons with a proprietary or evidentiary interest in particular court records. It is well-established that the common law right applies to a variety of judicial records, and that enforcement of the right is not contingent upon the requester’s status or personal interest in the records sought. Thus, in accordance with the common law and constitutional right of access, U.S. courts generally make public case files available upon request and without regard to the status or interest of the requester.
   4. Courts have reached different conclusions on whether the presumption of public access extends to every case file document, or only to records “on which a court relies in determining the litigants’ substantive rights” See Anderson v. Cryovac, Inc., 805 F.2d 1, 12-13 (1st Cir. 1986). This has led some federal courts to exclude from public access, for example, exhibits filed with motions that address a discovery dispute, Anderson, 805 F.2d at 13 (1st Cir. 1986) (no access to discovery documents submitted in connection with discovery motions). Even those courts that have questioned the scope of the presumption, however, acknowledge that “a court proceeding is in its entirety and by its very nature a matter of legal significance ... and the meaning and legal import of a judicial decision is a function of the record upon which it was rendered.” United States v. El-Sayegh, 131 F.3d 158 (D.C. Cir. 1997).

      The Supreme Court in the Reporter’s Committee case, defined the public’s interest in gaining access to public records as “shedding light on the conduct of any Government agency or official,” 489 U.S. at 773, rather than acquiring information about a particular private citizen. The Court also noted “the fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information.” 489 U.S. at 770.

   5. An area upon which there may be agreement is unfiled discovery - under Seattle Times the public right of access does not extend to discovery information, unless and until is it made part of the public case file or trial record.

2. Statutory and Rule-Based Requirements on Public Access

   Although public access to case files is based largely on the common law and constitutional principles, statutes and the rules of procedure also affect access to case files.

   In the most courts, copies of transcripts of court proceedings (including the original notes or other original records of the court reporter) must be available in the clerk’s office for public inspection without charge. See, e.g., 28 U.S.C. § 753(b). In federal bankruptcy courts, any “paper filed ... and dockets of a bankruptcy court are public records and open to examination by an entity at reasonable times without charge.” 11 U.S.C.§ 107(a).

   The Federal Rules of Procedure define “the record” as the papers and exhibits filed in the district court, the transcript of any proceedings, and the docket. The Rules do not, however, specify how the courts should provide access to case files. See Fed. R. App. P. 10(a) (defining the record on appeal as the original exhibits and papers filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court).

   State court rules are usually far more detailed, and indeed they often define the contents of the public record quite clearly. State courts have often singled out categories of case files or information that are presumptively sealed - family court records or juvenile criminal records are two good examples. The federal courts, because they do not have such broad jurisdiction, have very few “presumptively sealed” case types.

   Privacy has generally been protected on a case-by-case basis. Judges have broad discretion to issue orders that protect case-related information from unauthorized disclosure. See, e.g. Fed. R. Civ. P. 26(c) (protective orders). The Federal Rules, however, do not articulate standards for deciding motions to seal or unseal case file documents.

   The Freedom of Information Act (FOIA) and Privacy Act, which are the main statutes governing public access to executive branch records, do not apply to the judicial branch and do not govern access to case file documents. 5 U.S.C. §§ 551(1)(B) & 552(f). See also United States v. Frank, 864 F.2d 992,1013 (3d Cir. 1988); Warth v. Department of Justice, 595 F.2d 521, 522-23 (9th Cir. 1979).

3. Privacy-Based Restrictions on Public Access
   1. Public access to court case files implicates two sometimes conflicting obligations of government to the citizens:
      1. information held by government generally should be available to allow for effective public monitoring of government functions; and
      2. certain private or sensitive information in government files may require protection from indiscriminate disclosure.
   2. in general, judicial discretion is the primary method to protect privacy interests. The burden is on the party seeking to protect information to file and argue for sealing
   3. The Supreme Court has provided two key pieces of guidance on how to balance these obligations.
   4. First, the court has held that “access rights are not absolute.” The Court acknowledged that courts have both the authority and the obligation to consider access rights within the greater context of the potential harm that may flow from unrestricted public access:

      [E]very 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.

      Nixon v. Warner Communications, 435 U.S. at 596.

      In the context of electronic public records, the Court has noted that “access rights are not absolute.” In United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), a case involving a database of information summarized in a criminal “rap sheet,” the Supreme Court recognized a privacy interest in information that is publicly available through other means, but is “practically obscure.” The Court specifically noted:

      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.

      489 U.S. at 764.

      The holding in Nixon was indirectly addressed in a recent case, Los Angeles Police Dept. v. United Reporting Pub. Corp., 120 S.Ct. 483, 68 USLW 4005 (1999). That case involved a First Amendment challenge to a California statute that limited public access to arrestees’ addresses. The statute allowed access for “scholarly, journalistic, political, governmental ... or investigation purposes,” but prohibited access that would be used for commercial purposes. In the course of holding that the statute was not subject to a “facial” challenge, and remanding for further proceedings, the Court noted that the state “could decide not to give out arrestee information at all without violating the First Amendment.” Thus, although the Court did not explicitly address the common law right of public access, this case seems to support the Nixon holding that the government has considerable flexibility to impose some limits on public access in the name of privacy.

   5. Second, the Court has been reluctant to place restrictions on the use of public record information, instead suggesting that government policies intended to protect privacy should address how information is collected and maintained. In Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 495 (1975), for example, the Court noted that “[if] there are privacy interests to be protected in judicial proceedings, the [government] must respond by means which avoid public documentation or other exposure of private information.” (emphasis added).
   6. The federal courts employ a balancing test to determine whether to restrict public access to particular court records. Whether access rights are grounded in the First Amendment, or on the common law presumption, the party opposing public access is required to show an interest in prohibiting disclosure that overrides the presumption. As would be expected, applying this balancing test is a particularly case-specific exercise, and is highly dependent on the discretion of individual judges. Trial judges’ discretion in this area, however, is somewhat limited by the strength of the access presumption. See, e.g., United States v. Beckham, 789 F.2d 401, 409-15 (6th Cir. 1986) (trial court “must set forth substantial reasons for denying” access to its records); F.T.C. v. Standard Financial Management Corp., 830 F.2d at 410 (the burden of overcoming the presumption of open judicial records is on the party seeking to maintain the court records in camera); In re National Broadcasting Co. (United States v. Jenrette), 653 F.2d 609, 613 (D.C. Cir. 1981) (access may be denied in the interest of justice if the trial court weighs “the interests advanced by the parties in light of the public interest and the duty of the courts”).

Part 2: Privacy and Public Access to Electronic Case Files in the Federal Courts

1. A Judicial Conference subcommittee was formed in 1999 to develop policy guidance for the federal courts.
2. The federal judiciary is seeking public comment on the privacy and security implications of providing electronic public access to court case files.
   1. The request for public comment addresses several related issues:
      • the judiciary’s plans to provide electronic access to case files through the Internet;
      • the privacy and security implications of public access to electronic case files;
      • potential policy alternatives and the appropriate scope of judicial branch action in this area.
   2. All comments should be provided by January 26, 2001. The website to check is www.privacy.uscourts.gov
   3. The judiciary is interested in receiving comment on the appropriate scope of judicial branch action, if any, on the broad issue of access to public court records, and the corresponding need to balance access issues against competing concerns such as personal privacy and security.
   4. The judiciary recognizes that concern about privacy and access to public records is not limited to the judicial branch. There is a broader public debate about the privacy and security implications of information technology. Congress has already responded to some of these concerns by passing laws that are designed to shield sensitive personal information from unwarranted disclosure. These laws, and numerous pending legislative proposals, address information such as banking records and other personal financial information, medical records, tax returns, and Social Security numbers. The executive branch is also concerned about implications of electronic public access to private information. Most recently, the President directed the Office of Management and Budget, the Department of Justice, and the Department of Treasury to conduct a study on privacy and security issues associated with consumer bankruptcy filings.
   3. Electronic Public Access to Federal Court Case Files
      1. The federal courts are moving swiftly to create electronic case files and to provide public access to those files through the Internet. This transition from paper files to electronic files is quickly transforming the way case file documents may be used by attorneys, litigants, courts, and the public. The creation of electronic case files means that the ability to obtain documents from a court case file will no longer depend on physical presence in the courthouse where a file is maintained. Increasingly, case files may be viewed, printed, or downloaded by anyone, at any time, though the Internet.
      2. Electronic files are being created in two ways. Many courts are creating electronic images of all paper documents that are filed, in effect converting paper files to electronic files. Other courts are receiving court filings over the Internet directly from attorneys, so that the “original” file is no longer a paper file but rather a collection of the electronic documents filed by the attorneys and the court. Over the next few years electronic filing, as opposed to making images of paper documents, will become more common as most federal courts begin to implement a new case management system, called Case Management/Electronic Case Files (or “CM/ECF”). That system gives each court the option to create electronic case files by allowing lawyers and parties to file their documents over the Internet.
      3. The courts plan to provide public access to electronic files, both at the courthouse and beyond the courthouse, through the Internet. The primary method to obtain access will be through Public Access to Court Electronic Records (or “PACER”), which is a web-based system that will contain both the dockets (a list of the documents filed in the case) and the actual case file documents. Individuals who seek a particular document or case file will need to open a PACER account and obtain a login and password. After obtaining these, an individual may access case files - whether those files were created by imaging paper files or though CM/ECF - over the Internet. Public access through PACER will involve a fee of $.07 per page of a case file document or docket viewed, downloaded or printed. Electronic case files also will be available at public computer terminals at courthouses.

   4. Potential Privacy and Security Implications of Electronic Case Files
      1. There is increasing awareness of the personal privacy implications of unlimited Internet access to court case files. In the court community, some have begun to suggest that case files - long presumed to be open for public inspection and copying unless sealed by court order - contain private or sensitive information that should be protected from unlimited public disclosure and dissemination in the new electronic environment. Others maintain that electronic case files should be treated the same as paper files in terms of public access and that existing court practices are adequate to protect privacy interests.
      2. Federal court case files contain personal and sensitive information that litigants and third parties often are compelled by law to disclose for adjudicatory purposes. Bankruptcy debtors, for example, must divulge intimate details of their financial affairs for review by the case trustee, creditors, and the judge. Civil case files may contain medical records, sensitive personnel files, proprietary information, tax returns, and other sensitive information. Criminal files may contain arrest warrants, plea agreements, and other information that raise law enforcement and security concerns.
      3. The judiciary has a long tradition - rooted in both constitutional and common law principles - of open access to public court records. Accordingly, all case file documents, unless sealed or otherwise subject to restricted access by statute or federal rule, have traditionally been available for public inspection and copying. The Supreme Court has recognized, however, that access rights are not absolute, and that technology may affect the balance between access rights and privacy and security interests. See Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), and United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). These issues are discussed in more detail in an Administrative Office staff paper, "Privacy and Access to Electronic Case Files in the Federal Courts," available on the Internet at www.uscourts.gov/privacyn.pdf .
      4. Recognizing the need to review judiciary public access policies in the context of new technology, the Judicial Conference is considering privacy and access issues in order to provide guidance to the courts. The Judicial Conference has not reached any conclusions on these issues, and this request for public comment is intended as part of the Conference’s ongoing study.

   5. Policy Alternatives on Electronic Public Access to Federal Court Case Files

      Policy options for specific case types: The policy options outlined below are intended to promote consistent policies and practices in the federal courts and to ensure that similar protections and electronic access presumptions apply, regardless of which federal court is the custodian of a particular case file. One or more of the policy options for each type of case file may be recommended to the Judicial Conference for its consideration. Some, but not all of the options are mutually exclusive.

      1. Civil Case Files
         • Maintain the presumption that all filed documents that are not sealed are available both at the courthouse and electronically.

           This approach would implement the philosophy that the public case file should not be treated differently simply because it is in electronic rather than paper form. Electronic case files would be “open” for public access to the same extent as paper case files. There would be no restrictions on remote electronic access. This approach would rely upon counsel and pro se litigants to protect their interests on a case-by-case basis through motions to seal specific documents or motions to exclude specific documents from electronic availability. It would also rely on judges’ discretion to protect privacy and security interests on a case-by-case basis through orders to seal or to exclude certain information from remote electronic public access.

         • Define what documents should be included in the “public file”and, thereby, available to the public either at the courthouse or electronically.

           This alternative would focus on evaluating the need to include particular information or documents in the public case file, whether in paper or electronic format. The goal would be to define the elements of the “public case file” to better accommodate privacy interests, and to promote uniformity among district courts as to case file content. This approach assumes that the entire public file would be made available electronically without restriction. It further assumes, however, that specific sensitive information would be excluded from public review or presumptively sealed.

         • Establish “levels of access” to certain electronic case file information.

           This contemplates use of software with features to restrict electronic access to certain documents either by the identity of the individual seeking access or the nature of the document to which access is sought, or both. This alternative would focus on identifying categories of case file information or specific documents that may implicate privacy or security concerns. Rather than excluding certain information from the public case file, however, this approach would involve limiting remote electronic access to certain private or sensitive information.

           This approach assumes that the complete electronic case file would be available for public review at the courthouse, just as the entire paper file currently is available for inspection in person. It is important to recognize that this approach would not limit how case files may be copied or disseminated once obtained at the courthouse.

         • Seek an amendment to one or more of the Federal Rules of Civil Procedure to account for privacy and security interests.

           The Federal Rules of Procedure define “the record” as the papers and exhibits filed in the district court, the transcript of any proceedings, and the docket. The Rules do not, however, specify the content of the public case file or how the courts should provide access to case files. Accordingly, consideration might be given to rules amendments concerning these issues.

      2. Criminal Case Files
         • Do not provide electronic public access to criminal case files.

           This alternative assumes that the ECF component of the new CM/ECF system should not be expanded to include criminal case files. Due to the very different nature of criminal case files, there may be much less of a legitimate need for the development of software to provide electronic access to these files. The electronic availability of criminal information would allow co-defendants to have easy access to information regarding cooperation and other activities of defendants. This information could then be used to intimidate and harass the defendant and the defendant’s family. Further, the availability of certain preliminary criminal information, such as warrants and indictments, could hamper law enforcement and prosecution efforts.

         • Provide limited electronic public access to criminal case files.

           This alternative would involve the establishment of appropriate “levels of access” to electronic case files. This alternative would allow the general public access to some, but not all, documents routinely contained in criminal files. Access to documents such as plea agreements, unexecuted warrants, certain pre-indictment information and presentence reports would be restricted to parties, counsel, essential court employees, and the judge.

      3. Bankruptcy Case Files
         • Seek an amendment to section 107 of the Bankruptcy Code.

           Section 107 currently requires public access to all material filed with bankruptcy courts and gives judges limited sealing authority. Amending this provision by: 1) specifying that only “parties in interest” may obtain access to certain types of information; and (2) enhancing the 107(b) sealing provisions to clarify that judges may provide protection from disclosures based upon privacy and security concerns would address recognized issues in this area.

         • Require less information on petitions or schedules and statements filed in bankruptcy cases.

         • Restrict use of Social Security, credit card, and other account numbers to only the last four digits to protect privacy and security interests.

         • Segregate certain sensitive information from the public file by collecting it on separate forms that will be protected from unlimited public access and made available only to the courts, the U.S. Trustee, and to parties in interest.

      4. Appellate Cases
         • Apply the same access rules to appellate courts that apply at the trial court level.
         • Treat any document that is sealed or subject to public access restrictions at the trial court level with the same protections at the appellate level unless and until a party challenges the restriction in the appellate court.

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