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A commission appointed by Chief Judge Judith S. Kaye urged the state court system last week to take a broadly liberal approach to making litigation files available to the public on the Internet. The recommendation of the 19-member commission, headed by First Amendment expert Floyd Abrams of Cahill, Gordon & Reindel, would place New York in the vanguard of a handful of states that are working to make litigation files available on the Internet. Chief Administrative Judge Jonathan Lippman said in an interview that the Abrams commission’s recommendations will be tested out “in very short order” through a series of pilot projects throughout the state. The committee’s signal recommendation is that court files be made available on the Internet to the same extent that they are available when filed on paper. In those limited areas requiring protection from public disclosure, the commission recommended that a new rule be adopted that would be equally applicable to paper and electronic filings. The commission identified four types of information that litigants should be barred from including in their court filings: Social Security numbers, financial account numbers, the names of minor children and birth dates. Those limited exclusions are necessary, the commission said, to meet privacy concerns and to prevent identity theft. The court system was also urged to develop measures to protect the addresses and phone numbers of domestic violence victims and those who are similarly “at risk.” The Abrams commission’s overriding concern, however, was that existing court policies favoring access to paper records be extended to electronic filings. “Electronic filing is a modern form of paper filing and the Internet is an updated way of making information available to the public,” Abrams said in an interview. “It is very important that the two forms be treated under the same legal standard.” Currently most paper files are open to the public, though Family Court filings, divorce cases and youthful offender cases are not. In addition, a party can overcome a presumption that the contents of a court file should be available to the public on a showing of good cause. One member of the commission partially dissented by urging that lag time be created between an electronic filing and its availability on the Internet. The delay would permit parties to file motions to prohibit sensitive information from being placed on the Internet. The dissenter, Thomas F. Gleason, wrote that court filings often contain “sensitive personal information such as medical or personnel records, financial information, trade secrets” that would not be covered under the four categories recommended by the commission. Gleason, of Gleason, Dunn, Walsh & O’Shea in Albany, further suggested that without a mechanism for protecting confidential information, many attorneys may shy away from using electronic filing. Richard P. Swanson, co-head of the the New York County Lawyers’ Association Committee on the Supreme Court who is not a member of the commission, agreed that the privacy concerns of having electronic records available in searchable form on the Internet go “well beyond” those areas itemized by the commission. “All kinds of information that I would consider private to my life — such as medical records, financial information, e-mail and home addresses — are often included in court filings,” said Swanson, a partner at Thelen Reid & Priest. As for creating a lag period, Mr. Abrams countered, such a rule might be an invitation for “procedural wrangling” that could lead to lengthy delays before otherwise public information would be available on the Internet. PATTERNED AFTER PACER The format adopted by the commission, which is formally named the New York State Commission on Public Access to Court Records, closely follows that adopted by the federal courts. But unlike the federal court’s PACER system, there is no requirement that users register in order to get access to court files in the Abrams commission’s proposals. Members of the public using PACER are charged 7 cents per page view, up to a maximum of $2.10 a document. The Abrams commission stated a “preference” that no fee be charged for records available on the Internet, but urged that in any event, the charge should not exceed the actual cost of making the records available. Charges for photocopying state court documents vary from 10 cents to 25 cents, depending upon the court. Only a handful of states are in the process of making court records available on the Internet. Colorado and Delaware are working to establish statewide systems that would be registration-based like PACER. In California, some counties make files available in certain types of cases, and in North Carolina, filings in some kinds of business cases are available on the Internet. In New York, decisions issued by the Court of Appeals and the Appellate Division are available on the Internet, as are cases that have been accepted for publication by the official state reporter. Docket and calendar information is also available to the public on the “E-Courts” segment of the state court’s Web site (www.courts.state.ny.us). Some lower court decisions are available through E-Courts, and work is progressing to make more decisions available in that venue, court officials said. Three experiments with electronic filing are under way in the state court system. Such filing is permitted for Commercial Division and tax certiorari cases in Westchester, New York and Monroe counties, and some cases in the Court of Claims in Albany County. According to the Abrams commission, electronic filing has lagged in commercial and Court of Claims cases because the consent of all parties is required. In tax certiorari cases, the report noted, electronic filing has caught on, and more than 6,000 filings were made in 2003.

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