Public Justice - Briefs - Comment to Administrative Office of the United States Courts on Privacy and Public Access to Electronic Case Files

Trial Lawyers for Public Justice, P.C.

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______________________________________

January 26, 2001

By Electronic Mail

(Privacy_Policy_Comments@ao.uscourts.gov)

Court Administration Policy Staff

The Administrative Office of

the United States Courts

One Columbus Circle, N.E.

Washington, D.C. 20544

Attn: Privacy Comments, Suite 4-560

Re: Public Access to Electronic Federal Court Case Files

Dear Court Administration Policy Staff:

Trial Lawyers for Public Justice (“TLPJ”) respectfully submits the following public comments in response to the Request for Comment on Privacy and Public Access to Electronic Case Files (“Request for Comment”) issued by the Administrative Office of the United States Courts.

TLPJ also respectfully requests that TLPJ Staff Attorney Victoria Ni be permitted to participate in a public hearing on the matter, in the event one is held.

TLPJ urges the federal judiciary to adopt an approach that would make court files available through remote electronic means to the same extent that those files are now available in paper form. The public should receive the benefits of new technological advances in the judiciary’s case management system, because greater ease of access to court records promotes the policy goals that justify our long tradition of open government and open courthouses. Conversely, limiting access to electronic case files or presumptively sealing court records based on content due to fears of technology would substantially undermine the public’s right of access to our courts. Our more detailed comments are set forth below.

Interest of TLPJ

Trial Lawyers for Public Justice is a national public interest law firm dedicated to using trial lawyers’ skills and approaches to advance the public good. Litigating throughout the federal and state courts, TLPJ prosecutes cases designed to advance consumers’ and victims’ rights, environmental protection and safety, civil rights and civil liberties, occupational health and employees’ rights, and protection of the poor and the powerless.

TLPJ is also dedicated to ensuring the proper working of the civil justice system and open access to our courts. For over a decade, we have had a special project – Project ACCESS – that opposes unnecessary court secrecy as a threat to public health and safety, the fair and efficient administration of justice, and our democratic system of government. As part of Project ACCESS, TLPJ has intervened in a wide variety of cases to fight for the public’s right to know. For example, on behalf of three consumer advocacy groups, TLPJ filed a motion to intervene and unseal the court file in Foltz v. State Farm Mutual Automobile Insurance Company, a case filed in the United States District Court in Eugene, Oregon, that had been virtually erased from the public record following a secret settlement between the parties. Foltz involved allegations of consumer fraud, and, upon settlement, the district court authorized the sealing of the entire file of the four-year-long case, erased the docket sheet from the court’s computer system, and permitted State Farm to remove case files from the courthouse. As a result of TLPJ’s motion, the court ordered that the case files be returned to the courthouse and the docket sheet be restored in the court’s record keeping system. However, the court has continued to bar public access to many pleadings and court orders that were publicly available prior to the settlement. TLPJ is continuing its fight for public access.

TLPJ does not handle criminal or bankruptcy matters, and therefore is not in a position to offer comments with regard to public access to electronic criminal or bankruptcy case files. Our comments are directed solely at the policy option to make civil case files, including appellate civil case files, accessible to the public through electronic means such as the Internet.

Comment on Public Access to Electronic Federal Court Case Files

I. Remote Public Access to Electronic Civil Case Files Furthers the Policies Underlying the Common Law and First Amendment Rights of Public Access to Court Records.

The public’s right to inspect and copy court records is well-established. Nixon v. Warner Communications, Inc., 435 U.S. 539, 597 (1978). This presumption in favor of public access to court records is protected by both the common law and the First Amendment of the United States Constitution. See, e.g., Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066-70 (3d Cir. 1984) (stating that, in addition to the common law, “[t]he ‘First Amendment embraces a right of access to [civil] trials . . . .’”) (citation omitted). Open court records, like open court proceedings, serve to enhance the basic fairness of the proceedings and safeguard the integrity of the factfinding process. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982). Not only does the public’s ability to monitor the functioning of our courts “diminish[] possibilities for injustice, incompetence, perjury, and fraud,” but it also improves the public’s understanding of and confidence in the judicial system. Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d Cir. 1988). Even more fundamentally, the public’s right of access to judicial records helps to reinforce democratic ideals, ensuring that the constitutionally- protected free discussion of governmental affairs is an informed one. Publicker Indus., 733 F.2d at 1070 (citation omitted).

Secrecy in the court system, on the other hand, too often places public health and safety in jeopardy. Overly broad confidentiality orders hide from public view critical information regarding hazardous products or unscrupulous individuals and companies, and prevent the public from being able to protect itself from otherwise avoidable risks. See Lloyd Doggett & Michael J. Mucchetti, Public Access to Public Courts: Discouraging Secrecy in the Public Interest, 69 Tex. L. Rev. 643, 648-49 (1991). Bridgestone/Firestone, for example, utilized court-sanctioned confidentiality orders in cases filed across the country to hide information about hundreds of injuries and deaths linked with a persistent tread separation problem with its tires. As a result, for nearly a decade, the public and government agencies were unaware of the extent of the problem, and unsuspecting consumers continued to buy, and rely on, the potentially deadly Firestone tires. See Thomas A. Fogarty, Can Courts’ Cloak of Secrecy Be Deadly? Judicial Orders Protecting Companies Kept Tire Case Quiet, USA Today, October 16, 2000, at 1B. Furthermore, secrecy orders “give cover” to attorneys and their clients who try to engage in “stonewalling,” or the withholding of relevant documents and information during discovery. In other words, the more secure a party is that the information at issue will not be revealed from other sources, the more emboldened the party will be in denying the existence of that information. See Doggett & Mucchetti, Public Access, at 650.

TLPJ believes that the presumption of openness in our courts should continue to govern as the judiciary modernizes its case management system, and that as long as files are deemed to be “public” files, they should be accessible by the public using the most convenient means available. The use of technology to bring public court records to a wider audience would further the policies embodied in the presumption of open courts that is rooted in our common law and Constitution. It would bring more accountability to both the bench and the bar, help demystify the court system, and promote the free flow of information that is so cherished by our democratic society. It would also help bring to light information pertinent to public health and safety that could potentially save lives. Accordingly, TLPJ supports the adoption of the first policy option set forth in the Request for Comment with regard to civil case files, which would “[m]aintain the presumption that all filed documents that are not sealed are available both at the courthouse and electronically.”

II. Proposals to Limit Public Access to Electronic Case Files and/or Entire Categories of Information in Court Records Are Contrary to the Policies Underlying the Common Law and First Amendment Rights of Public Access to Court Records, and Are Attempts, in Effect, to Circumvent the Presumption of Openness.

Given the strong and well-established presumption that court records should be accessible to the public, any restriction on public access should require special justification on a case-by-case basis. In general, TLPJ believes that the mere fact that otherwise-public records are stored and available in computer-readable form does not qualitatively transform them into sensitive records to which access should be restricted. If records are available to the public in paper form, then they should be treated no differently when they are stored in electronic form. To restrict access to case files simply because they are electronic in form – as contemplated by policy option number three – would erect artificial barriers to public access, be contrary to the policies underlying our long-standing tradition and presumption of open courts, and effectively undermine the common law and First Amendment rights of public access to court records.

Even more troubling is the second policy option identified in the Request for Comment. In order to account for privacy concerns, it would propose to eliminate entire categories of information from the public record – consisting of both paper and electronic files – thereby shifting the presumption from openness to secrecy with respect to those categories. This approach would be entirely contrary to current law, which clearly places the burden on the party seeking to seal court records to make a particularized showing that its interest in secrecy outweighs the presumption of access, and requires a case-by-case balancing of interests. See, e.g., Bank of Am. Nat’l Trust and Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d. 339, 346 (3d Cir. 1986); see also Fed. R. Civ. P. 26(c) (requiring party moving for a protective order to show “good cause” for the order). TLPJ urges the judiciary to reject this approach as one that is contrary to established law and substantially overturns the presumption in favor of public access to all court files.

Those who oppose electronic access to court records claim that such means of access will result in widespread and undesirable dissemination of “private” information. However, privacy concerns ‒ even in this age of technology ‒ may be addressed under existing law, which provides for protective orders where secrecy can be justified, and for civil or criminal liability in instances of negligent use or criminal use of private information. Indeed, whether information is considered private should not depend at all on whether the information is found on paper or on a computer. Nor is the judiciary particularly well-suited to police all possible “secondary” uses of information in otherwise-public files, and it should not be in the business of making access to public records more difficult, rather than less, based on generalized privacy concerns. As a subcommittee of a New Jersey Supreme Court policy committee found after studying the issue of electronic access: “[I]t is [not] the role of the courts to restrict or suppress access to otherwise public information, gathered and maintained at public expense, based on the possibility that it might be used to the prejudice of individuals in certain cases.” Notice to the Bar, Report and Recommendations of the Public Access Subcommittee of the Judiciary Information Systems Policy Committee, N. J. Lawyer, December 30, 1996, at 21.

Conclusion

As a matter of policy, secrecy in our courts should be the exception rather than the rule. Current strides in technology do not substantially alter the policy considerations that underlie common law and constitutional principles favoring public access to court records. To the extent that privacy concerns exist, they are properly addressed on a case-by-case basis, taking into consideration particularized showings of harm to privacy interests. Privacy concerns should not, however, be addressed by indiscriminately sealing documents or information of an entire category. For these and the other reasons set forth above, we urge the federal judiciary to allow the public to have remote electronic access to civil case files to the same extent that those files are now available in paper form.

Respectfully submitted,

/s/

Arthur H. Bryant

Executive Director

Trial Lawyers for Public Justice

/s/

Victoria W. Ni

Staff Attorney

Trial Lawyers for Public Justice