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Historically, “openness” has been a guiding principle of the judicial system in the United States. Yet, as courts enter the age of the Internet, certain pluses and minuses of openness emerge. On the one hand, placing court records on the Internet makes them more widely available and easier to obtain. On the other hand, Internet-accessible court records facilitates disclosure of sensitive and personally identifiable information about people involved in court proceedings. Striking the proper balance between public disclosure and protecting privacy rights will be a challenge going forward. ONLINE STATE COURT RECORDS On Aug. 21, the Washington, D.C.-based Center for Democracy & Technology released a survey on how state and local courts make information available to the public over the Internet. While many of these courts already have embarked on the process of making court records available online, they have proceeded in very different ways. Some states provide statewide online access to court records, while in other states single jurisdictions make their records available. Some states provide online access to both civil and criminal court records, while others may restrict access to criminal records and records that may contain sensitive personal information. Many states make judicial appellate decisions available online but do not offer access to trial court proceedings, while other states make sure to include trial court records on the Internet. Some states offer free online access to their court records, while others charge fees for online access. STRIKING THE RIGHT BALANCE Plainly, there is value in public access to online court records. It is important for the public to be able to monitor the judicial system, as is true with any other governmental branch. Moreover, at times, important information can be obtained about parties in court proceedings that can be of benefit in other legal proceedings or in other respects. Still, highly sensitive and personal information can be discovered and revealed in legal proceedings, and once such information is made available on the Internet, it is easily accessible by the entire world. Should such information be a mouse click away on the Internet? Of course, protective orders could be entered in cases barring the public revelation of certain aspects of legal proceedings. Also, should people be charged for online access to court records? If such charges are assessed, it is possible that financially disadvantaged people will have less access to the judicial system. Yet, this already is true, as lawyers generally come with a price tag. Furthermore, should criminal court records be as available online as civil records? A criminal defendant might demand privacy about his or her own criminal proceedings. But then again, the public might have a heightened need to know about criminal behavior and related legal proceedings. STUDYING THE ISSUE Various national organizations have begun studying the potential reconciliation of competing privacy and public disclosure interests related to placing court records on the Internet. For example, the National Task Force on Privacy, Technology and Criminal Justice Information issued a report that outlined various recommendations, including: establishing a governmental body to provide advice on privacy risks, the creation of new privacy laws, the development of technology to ensure data security, and the sealing or elimination of criminal history information when it no longer serves public safety interests. These recommendations are not terribly concrete, and there apparently has been very little follow-up. MUCH MORE TO BE DONE Rigorous thought needs to be applied to the issue of the types of court records that should be made available on the Internet and under what particular circumstances. Input should be provided by the public, the courts and legislators. Before the genie is too far out of the bottle, it would be best to try to balance online public access to court records against appropriate privacy interests. Hopefully, lessons will not be learned from too many mistakes that could have been avoided with some forethought. Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is www.duanemorris.com. Mr. Sinrod may be reached by e-mail at [email protected]

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