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We stand at the threshold of the electronic courthouse. In the very near future, electronic filing and imaging technologies could enable anyone with Internet access to retrieve, review and print out court records from their home or office computer with just a few clicks of the mouse. Indeed, in the virtual courthouse, anyone with a computer has the key to the file room and a window on the workings of the justice system. The promise of instant online access to court records could give new meaning to the term “open government,” shedding light as never before on the daily business of the courts. At the same time, the public electronic dissemination of court records containing details about the private lives of individual citizens, with its Orwellian overtones, may require us to redefine the concept of openness in the 21st century. Consistent with the American tradition of an open justice system, records of court proceedings have, with limited exceptions, long been available to the public for inspection and copying. [FOOTNOTE 1] Even today, access to court records still means going to the courthouse to physically retrieve hard-copy case files that have to be reviewed and photocopied page by tedious page — a process that effectively insulates their contents from widespread public review. However, as a growing number of people use the Internet to gain greater access to detailed first-hand information about the courts, court proceedings and litigants, our democratic society’s historical commitment to openness and the free flow of information will be put to the test. The New York state court system is committed to integrating emerging technology into the work of the courts to better serve the public and make the justice system more accessible, efficient and accountable. [FOOTNOTE 2] The potential benefits to the public of the still-young information technology revolution are enormous. [FOOTNOTE 3] Access to the courts, in the broadest sense of the phrase, will be greater than at any time in history. Imagine being able to download legal forms that can be completed and filed over the Internet to commence a small-claims action at which you appear before a judge via computer-integrated video conference technology. Technology is rapidly eliminating physical and geographical barriers, and the courthouse soon will cease to be defined by its physical characteristics. However, before we rush to embrace these possibilities, we must examine thoroughly the serious implications for the privacy of participants in court proceedings and for the integrity of the judicial process. A great deal of personal information can be gleaned from court records — tax returns, bank and medical records, Social Security numbers, home addresses and phone numbers, even a person’s signature. Online access can facilitate improper or even illegal use of personal information by outsiders. The inherent tension between ensuring government accountability and preserving the confidentiality of sensitive personal information has always existed; but the emergence of off-site electronic access to court records makes it imperative that the court system revamp its policies to ensure that these countervailing interests are properly balanced in the context of the new electronic age. COMMISSION APPOINTED To guide the court system in this critical task, Chief Judge Judith S. Kaye of the New York Court of Appeals announced the appointment of the Commission on Public Access to Court Records during her most recent State of the Judiciary message in January. The commission is being chaired by Floyd Abrams, of Cahill, Gordon & Reindel, a nationally recognized expert on first amendment and privacy issues. The commission will bring together the very best minds, representing the full range of affected constituencies — the courts, lawyers, institutional litigants, the media, privacy advocates and academics — to consider carefully both sides of the public access/privacy debate and to recommend a comprehensive and coherent framework that will guide the court system’s decision making in this area well into the 21st century. The commission must confront policy issues in a manner that neither compromises the privacy interests of litigants and third parties nor impairs the ability of the justice system to resolve disputes fairly and efficiently. Proceeding from the fundamental presumption in favor of open records, the commission will grapple with many complex policy questions. Are there distinctions between paper and electronic records that warrant two different sets of access rules? Should there be different levels of availability based on the nature of the records involved? Should lawyers and litigants have a greater level of access than the media or members of the public? For instance, certain records could be available online to the parties and their lawyers, but available to others only at courthouse computer terminals. Are there justifications for imposing restrictions based on the individual or entity requesting access or based on the intended use of the data? Should the media’s right to report be given greater weight than the mere curiosity of individual members of the public? Should the weight accorded the competing access and privacy interests fluctuate on the basis of the specific facts or the public nature of the case? The answers to these questions may differ based on the nature of the documents involved. There may be case records considered sensitive in their entirety and therefore inappropriate for online access. Possible examples are medical reports, tax returns, financial statements or credit reports. What about the countless other records that may contain one or more data items, such as home addresses and phone numbers, Social Security numbers, computer access codes or bank account numbers, that could be inappropriate for public disclosure? Should access to the entire document be restricted or only to the objectionable data items? Should the court and its staff bear the responsibility for identifying records that should be restricted or should that task rest with the parties and their representatives? Of course, the presumption that judicial records are open is far from absolute and there are many case files that will remain sealed by law, especially in family court, domestic relations and criminal matters. Children particularly need special protection against the potential psychological harm arising from public disclosure of sensitive personal information about them, and the electronic access movement would in no way diminish the many critically needed protections that exist in this area. There are additional interests that may justify restricting access to court records, including the possibility of prejudicial pretrial publicity or the danger of impairing law enforcement or judicial efficiency. PROTOCOL Whatever the operative policy framework recommended by the commission, the courts are sure to face complex practical problems. Once the categories of records that should be restricted in the interests of personal privacy are delineated, the court system will have to identify and restrict access to those documents in a manner that is fair, reliable, efficient and practical. The courts will have to adopt protocols and procedures covering millions of court records. Perhaps an automatic delay in the posting of electronic records would give the parties and their representatives time to request restriction or redaction. No matter what policies and procedures we adopt, they must not be so complex as to defeat the underlying goals of promoting public convenience and efficiency in court operations. These and many other cutting-edge issues will be addressed in the commission’s report. Freedom of information on matters relating to the workings of government is indispensable to the healthy functioning of a democracy. [FOOTNOTE 4] Open courts promote public respect and confidence in the integrity and quality of the judicial system. The benefits of new advances in electronic access, which have the potential to make the courts truly open and accessible, should be made appropriately available to the public. Indeed, the Internet should be viewed with optimism for its potential to democratize the courts and bring citizens closer to their justice system. Thus, judicial records should not cease to be open to the public simply because they are electronic. At the same time, court policies and practices developed for the hard-copy era must be re-examined and possibly recalibrated as we enter the age of paperless courts. In the coming years, with the benefit of the commission’s report and recommendations, the New York state judiciary will have the opportunity to develop thoughtful and innovative approaches that protect the privacy of citizens and yet unmistakably nurture a justice system that, thanks to the latest technology, is open and accessible as never before. Jonathan Lippman is chief administrative judge of the state of New York.

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