A Question of Ethics

Has Technology Changed the Meaning of Public Access?

There is no question that technology has changed how we think of almost every aspect of dispensing justice. Twenty years ago, the way we did business unquestionably made sense at that time. Now, however, technological innovations are forcing us to revisit old business rationales. The new logic often produces a variety of processes.

One innovation is in how we access public court records. Years ago, you, as just a member of the public, had basically one option if you wanted to look at court files. You had to personally request them from the clerk’s office.¹ One result of this single option was that you really had to want to see a case file. Traveling downtown, waiting in line to ask for a file, waiting for the clerk to dig through the file room and retrieve it, all the while hoping that a judge did not have it in preparation for a hearing, effectively dissuaded casual onlookers.² Once the clerk gave you the file, you usually had to sit in the supervised records reading area to review the court documents.³

With electronic document management and e-filing, many court systems are now capable of providing immediate, remote online access to public court documents. Still, remote access varies by court system and by state. The NACM Model Code Canon 1.3 professes that court professionals should strive to make courts accessible. Since the technology is obviously available, what is more symbolic of an open, accessible court system than open public court records that are as accessible as possible?  Why shouldn’t the public be able to view public court records from their office or home on their laptop without having to register, pay a fee, or prove that they are a party to the case?  Should we, as court professionals, be supporting maximum access to electronic court files?   

The Respondents

Here to comment on these questions are, Janet G. Cornell, consultant and retired court administrator in Scottsdale, Arizona; Nancy CS Eberhardt, court executive officer for the San Bernardino Superior Court, California; Norman H. Meyer, Jr., retired clerk of the Bankruptcy Court for the District of New Mexico, Norman H. Meyer, Jr.; Phillip Knox, principal for KSA Consulting in San Francisco, California; Eric Silverberg, retired court administrator for Cochise County in Bisbee, Arizona; and Sarah Brown-Clark, clerk of court for the Municipal Court in Youngstown, Ohio.

The Questions

Are you aware of processes that discourage electronic access to public court files?
As mentioned in the introduction, technological advancements have produced a variety of processes among courts. Neither Sarah Brown-Clark nor Eric Silverberg were aware of any instances where electronic access to court records had been discouraged.⁴

Norman Meyer discussed PACER (Public Access to Court Electronic Records),⁵ the public-facing system used by the U.S. District Courts.⁶ PACER requires an individual to register (including name, address, phone number, email address, and role within the court system) before viewing court documents. The system also charges a fee in certain circumstances, although there are caps for most users.⁷ “Registration shouldn’t be too much of a burden, and the process is customized for the type of person/entity you are.”⁸ Norman declared that registering and paying a fee was not intended to discourage or otherwise prevent people from accessing information and records.⁹ “No federal clerk of court that I know of would take that position (and in fact, most of us think that access should be free).”

Janet Cornell recalled wanting to check on a civil employment case at the U.S. District Court. “I stopped trying to obtain it online when I was required to create an account, and (what appeared to be) pay for PACER access.”  She also remembered trying to view a criminal case in a state court but realizing the only way to get access was to personally go to the courthouse and look up the case details.

Phillip Knox stated that Arizona operates under Supreme Court Rule 123—Public Access to the Judicial Records of the State of Arizona, which in the preamble affirms a preference for open government and an informed citizenry. It reads in part that all records are, “presumed to be open to any member of the public for inspection or to obtain copies at all times during regular business hours.”  The rule does advise, however, that, “ in view of the possible countervailing interests of confidentiality, privacy or the best interests of the state, public access to some court records may be restricted or expanded.”

Nancy Eberhardt responded that in California, remote access to court documents differs according to the case type and type of document. “This is a result of balancing the needs for improved access to electronic court documents with the important concern of safeguarding parties to an action that may be vulnerable in the community and their right to privacy.”  California Rules of Court, Rule 2.500 et seq. set forth rules regarding access to electronic trial court records.¹⁰

What is the reason for discouraging access?
Phil stated that administrative and technological barriers are placed on juvenile cases, some adult criminal cases, judicial work products, and administrative (employment and procurement) records. Courts may limit access to both paper and electronic court records and information that has been placed under seal or otherwise been closed by court order. “Generally, an established practice in Arizona and elsewhere is that if remote access is limited regarding electronic records and files in order to prevent a breach in legal requirements, individuals must travel to a court site and request the file in paper or use terminals provided on-site. Some argue that this cumbersome means of access is akin to restrictive access.”

The reason for discouraging remote access is usually a question of balance between an individual’s right to privacy and the public’s right to know. “I have been involved in some of the decision making when the response to an inquiry for certain information was not obvious under the controlling rule. Although Arizona Rule 123 includes language that attempts to direct requestors toward the proper use of the court’s data and limit any legal action that can be sought against the court for the release or even accuracy of the information, decisions have landed on the side of restrictive access. The language in Rule 123 listed above as to best interests of the state that affords a restriction or expansion of release was obviously well-considered when drafted.”

Nancy declared that the new California Rules of Court (effective in January 2019) have made great strides toward balancing the public’s need for remote access to court documents with the need for privacy in cases involving children, families, dependent adults, and other vulnerable parties. Rules are set forth regarding levels of remote access for the general public, parties to an action or their designee, attorneys of record or assisting that attorney, court-appointed persons, legal services providers, and government entities.

Norman thought that cost was a consideration, although with technology costs decreasing that argument might be getting thin.

Is it ethical for courts to discourage public access when the technology to provide unfettered access is available?
Nancy noted that if the court allows the public to view documents by way of kiosks, paper files, or viewing rooms, it has fulfilled its core duty as custodian of the records providing access for review (except where documents are sealed or otherwise confidential). “The line blurs when technology is factored into remote court document access and especially when partnered with ease of access to the physical location of the courthouse relative to the location of the person. Impeding electronic access to court documents could be seen as a limit to access if the only access were through remote access and if interested persons were not able to view their records. The new California rules take a large step in the direction of opening remote access for interested parties and offering access to the public in general civil cases while protecting sensitive information from remote, non-party access. All files can still be viewed at the courthouse.  Additionally, because the Register of Actions is available at all times, a member of the public could remotely request copies be made and sent to them if access to courthouse viewing is not available.” 

Eric believed that legislatures should provide dedicated funding for public access without the need for stiff user fees. “When courts must go to their standard appropriation of tech funds to add this new service, the tendency will be to push as much cost as possible to the public so the court can do other projects.”  Courts taking the lead on this issue inspires trust and confidence in the courts.

Phil admitted that he is a stronger proponent of individual rights than of the public’s right to know. “It may be that I am concerned for the accuracy of the data and certainly in the limitations of some courts to redact information that can lead to harmful outcomes. I have served on committees that work on retention of records and redaction of information that is not only found in the court’s records but in the database of the clerk’s financial history, the prosecutor’s system, probation department records, and other sources. Without additional assurances, I am more comfortable with informed and considerate restrictions.”

Phil acknowledged that courts have worked diligently to establish a balance. “The authority that allows access to information is sometimes obfuscated as emanating from the First Amendment when in fact it arises from statute. State legislatures establish a level of access and localities can then allow for greater access. This leads to an array of varying laws and differing balances between individual rights and the perceived right of the public. Courts and the justice system are caused to work within the set parameters. A key factor for me in establishing my position is in weighing the possible detriment brought upon the individual versus the detriment to the public not having the information.”

Norman responded that he is a big believer in open and accessible government and courts, and if a court can provide wider public access to its records it should do so.

Thanks again to Sarah Brown-Clark, Norman Meyer, Eric Silverberg, Nancy CS Eberhardt, Phil Knox, and Janet Cornell for their thoughts regarding the challenges of technology and public access to court records. As technology advances, these questions will grow more pronounced in the future.  Be sure to visit the NACM ethics web page at http://nacmnet.org/ethics to see previous ethics columns, and to download educational ethics modules your court or state association could use to present ethics training in your state. If you have an ethical issue you would like to discuss, or if you have comments on this or any of the previous columns, please contact me at ethics@nacmnet.org.

ABOUT THE AUTHOR

Peter C. Kiefer has spent over four decades working for the courts in Oregon, California, and Arizona, as well as on rule-of-law projects in Liberia, Moldova, and Beirut.

1. In courts where the court administration and the clerk’s duties are merged the public would go to the court administration records room.
2. This process was of such importance that the National Center for State Courts’ CourTools, Measure Six called for us to measure “the percentage of files that can be retrieved within established time standards.”
3. You did not get to see confidential documents; they were stored separately. You did not get to see sealed files (e.g., juvenile files).
4. For this column “discouraging access” refers to placing any sort of administrative or technological hurdle to immediate, open access to public electronic court documents, even remote access. It includes policy decisions to discourage access. (For example, if a public F.O.I.A. demand was made, the court would have to produce the document.) It does not refer to court documents that are sealed or declared confidential by specific court order, redacted because they contain confidential data, or deemed confidential by statute.
5. To learn more about PACER access, go to https://www.pacer.gov/.
6. PACER is distinguished from the CM-ECF (Case Management-Electronic Case File) system, which is the U.S. District Courts’ internal court records/docket/etc. system.
7. To learn more about PACER’s fee schedule access go to https://www.pacer.gov/documents/epa_feesched.pdf.
8. To learn more about PACER’s registration process access go to https://pacer.psc.uscourts.gov/pscof/regWizard.jsf.
9. Norman shared that just this month, the Federal Judicial Conference dramatically increased the quarterly fee waivers for accessing court files through PACER. Now 75 percent of PACER users will pay no fee to access court files.
10. Editor’s Note: Cal. Rule of Crt. Rule 2.500 sets out the provisions for remote electronic access to court records. Parties to a case, their attorneys, specific designees, and government agencies have enhanced access to electronic court records, while the public has limited access. Access is particularly limited in family, probate, and criminal cases types.