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The Internet, which has made public court records more public than ever, could lead –ironically — to a more restrictive definition of which court records are “public.” The Administrative Office of the U.S. Courts is seeking comment about whether to limit access to sensitive information in court files, such as litigants’ medical records, employment files or financial information. Any such restrictions would chip away at the long-standing tradition of openness of court records and proceedings, except for those implicating special privacy concerns, such as those involving juveniles or company trade secrets. According to the AOUSC, public openness was fine in an age when the daunting task of wading through paper files and weighty tomes was enough to deter most snoops. “The inherent difficulty of obtaining and distributing paper case files effectively insulated litigants and third parties from the harm that could result from misuse of information,” the AOUSC says in a statement. “Allowing access to case files through the Internet, depending on how it is accomplished, can make such personal information available easily and almost instantly to anyone who seeks it out,” the statement continues. The AOUSC says the Judicial Conference, which is studying how courts should handle these privacy issues as electronic files become more available, will consider the public comments it receives by Jan. 26. Options currently under consideration can be found by clicking on the “Document for Comment” box at http://www.privacy.uscourts.gov. In the meantime, the push toward paperless processing goes on. The AOUSC has begun a pilot program that eventually will allow all federal courts to accept documents filed electronically, and allow clerks to scan paper documents into electronic files — making them available on the Internet. Bankruptcy Court provides a glimpse into some of the privacy issues that may be raised as more courts go on-line. E-filing has not yet been approved for the U.S. Bankruptcy Court in New Jersey, but clerk James Waldron says it’s one of the leading candidates. Even if the AOUSC gives the go-ahead and provides the software, Waldron says, the local bankruptcy judges still have to vote on it, probably in early fall. Electronic access, meanwhile, is in full gear. New Jersey court staffers create electronic files by scanning paper documents, including the debtor’s initial bankruptcy petition, notices sent to creditors and court orders. The documents can be accessed through the Internet, and downloaded at seven cents a page, at http://www.njb.uscourts.gov. The debtor’s petition and entire court record have always been public, but in the past, without a trip to the courthouse, creditors could only obtain notice of a debtor’s bankruptcy, which did not include a detailed description of the debtor’s financial information. Practitioners like Glenn Reiser, of Hackensack, N.J.’s LoFaro & Reiser, point out that creditors, by having easier access to the full petition, can better detect a fraudulent filing. In addition, they have more information to determine whether they are entitled to relief from the automatic stay, which goes into effect in favor of the debtor once the petition is filed. Simon Kimmelman, who chairs the State Bar’s Bankruptcy Law Section, agrees that bankruptcy filings are — and should remain — fully open to the public. “For the most part, things should not be confidential. Courts are supposed to be open,” says Kimmelman, who represents debtors and creditors. But an attorney who represents debtors exclusively fears that the ability to get bankruptcy petitions instantly over the Internet will make it too easy for someone unconnected to the case — say, a boss or neighbor — to access personal information. “Most people aren’t going to make a trip to Bankruptcy Court” to search files, says Paul Bakanauskas, who heads a firm in Jersey City. The ability to access personal data “by punching a few keys” changes the equation, he says. Privacy advocates point out that easier access to litigation files — which, depending on the case, might include medical records or employment files, not to mention Social Security numbers — could lead to more commercial databases. “A lot of this information is being turned into a commodity,” says David Sobel, general counsel to the Electronic Privacy Information Center, a Washington, D.C., organization that advocates for privacy rights. But Sobel says any reform must strike the proper balance between privacy and the public’s right to monitor the courts. “The public has the right to oversee how the courts function, and how courts deal with particular kinds of evidence.” Sobel points out that courts may have to modify the grounds now recognized for sealing files or issuing protective orders, to take into account the easier access to information through the Internet. For its part, the District of New Jersey is getting ready for electronic filing, though it’s about a year and a half away. Melvin Jackson, the clerk’s deputy-in-charge, says the district is creating online court records. An Internet company has been scanning selected files to make them available on its Web site, Juritas.com, which is advertised as a legal research service. The state courts, meanwhile, have allowed some electronic filing but do not yet maintain online files that can be accessed through the Internet. Electronic filing is allowed on a limited basis in the Appellate Division, and in a pilot program taking place in Monmouth County’s Special Civil Part, says Robert Pitt, chief of Special Civil Part Services at the Administrative Office of the Courts. As of Nov. 27, says Pitt, the electronic filing of pleadings, motions and supporting documents in Special Civil Part will be available statewide to attorneys who register. Pitt notes that Special Civil Part clerks in Monmouth County’s pilot program have also been scanning paper documents into electronic files, and allowing public access to them from a computer terminal inside the courthouse, but he says there are no plans yet to implement those measures statewide.

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