Access to the Whole Case, and Nothing but the Whole Case (Online)
Think how frustrated you would be if you couldn’t access your credit-card or bank-account information online at a moment’s notice. Consider the stress you would feel if you can’t check in and get a seat for your next flight on the carrier’s app or website, instead of waiting in those long lines at the airport. What if you couldn’t see the status of your Amazon order. The horror!
The range of these modern conveniences can’t stop with private businesses. Courts must embrace online service delivery and, in particular, access to information. Failing to do this in our modern world erodes trust and confidence in the judicial system. Access to court information is one service that extends beyond convenience and provides fundamental utility. And to be fair, many courts do provide some electronic access to court records. But there continues to be a glaring gap between what court records are made available in person versus what is available online.
Full and appropriately controlled online access to court case documents and data should be part of a court’s near-term strategic plan for many reasons:
Improved customer service. Through taxes and court fees, litigants and the general public pay significant amounts for court services. However, improved customer service doesn’t have to mean more work for clerks. In today’s world, this includes expanded self-service offerings. Kirkham (2016) found that a study of American tax preparation preferences revealed that the percentage of tax returns self-prepared using software is approximately equal now to the percentage that are prepared by accountants (as cited by JTC Resource Bulletin, “Courts Disrupted,” May 11, 2017, p. 3).
Better transparency. Are filings handled timely with fair and impartial outcomes? As Steketee and Carlson point out in their report, “Developing CCJ/COSCA Guidelines for Public Access to Court Records: A National Project to Assist State Courts” (National Center for State Courts, Williamsburg, Virginia, October 18, 2002), “The role of the judiciary is to resolve disputes, between private parties or between an individual or entity and the government, according to a set of rules. Although the dispute is between two people or entities, or with the government, having the process and result open to the public serves a societal interest in having a set of stable, predictable rules governing behavior and conduct” (p. 5).
Operational efficiency. Faster service delivery. Self-service, remote access delivers operational efficiencies to both the court and the individuals and organizations that they serve. Electronic remote access enables courts to respond to records requests quicker and at a lower cost than they could in person in the courthouse. Litigants, attorneys, businesses, and agencies seeking court records save time and money in comparison to making a trip to the courthouse for this information.
“But it’s not that simple!” you say. Courts must evaluate the cost and effort of online security and privacy protection with the utility and convenience of easier access to records online. This is, of course, true.
In addition, one of the biggest privacy challenges facing courts is that it is too time-consuming to manually go through every electronic document in every case file to redact sensitive and personal information. Further, it is risky for a court if these data are inappropriately released due to a manual redaction oversight by a clerk.
But hold on! Banks, online merchants, medical-service providers, and many other companies in other industries face the same, if not more issues and risks in providing online access to their records. Private companies accept enormous risks to provide account information online. But they do it because it is cost-effective, and beyond that, it is expected as the new normal. Without this customer access to their records, those companies would lose relevancy in their industries.
Courts are tackling this issue in alternative ways. Many are worth a look for guidance and lessons learned.
For example, in the state of Florida, clerks are required to provide the same level of access to court records online as in person as set forth in the Standards for Access to Electronic Court Records. Short of performing automated redaction on all case files, the state has created a standard privacy matrix that guides courts on what documents, by case types, should be made immediately available upon on demand versus never available. For documents that should be reviewed, the public can select the document and send an email request for access. Once a request is made, a clerk will review the document to ensure sensitive data are redacted. The requestor is then sent a notification that the document is available. This process reduces the time and effort of review and redaction to only those case files that are requested. It is just as it would be if they came to the courthouse, except for those records that are made available without review, where the burden is removed completely.
The Judicial Council of California has drafted a proposal, Technology: Remote Access to Electronic Records, to update court rules on public access to court documents and create rules on remote (online) access to court records by “parties, parties’ attorneys, court-appointed persons, authorized persons working in a legal organization or qualified legal services project, and government entities.” The new rules look to expand remote-access guidelines and standards to case records by those who are involved with the case. This is a necessary expansion of access since current court rules only address access to the general public and, therefore, are restrictive in what is made available online.
Enter Automated Redaction
As noted above, knowing what is in your document database and implementing reliable redaction practices are key to providing appropriate online access. Automated redaction is proving to be an increasingly effective tool.
Automated redaction employs optical character recognition (OCR) and artificial intelligence (AI), or machine-learning technology, to read documents and “learn” to identify sensitive information, automatically redacting or blacking out that information. Further, AI enables continued learning so the tool improves accuracy over time and expands its understanding of unstructured data, or data that are not always formatted the same, like a Social Security number.
While automated redaction has been available for a while, solutions struggled to provide the level of accuracy needed to be cost-effective. However, the recent NCSC study suggests that the technology has vastly improved, with an overall accuracy rate of 97.81 percent by the data-identification software participating in the study. These results include data identification of structured and unstructured data, in both structured and unstructured documents. Be sure to check out the report for all the specific outcomes.
Courts could incorporate the automated redaction of documents into the process in a couple of ways. Documents could be inspected and redacted using the electronic filing manager (EFM) or the document management system.
Courts must muddle through the sticky privacy challenges and clerk workload issues associated with providing timelier, comprehensive remote access to court records. As courts consider policies for privacy and remote access to court records, here a few additional considerations:
- Enforcing strict formatting guidelines for filings that can support both automated-redaction and human-review practices.
- Charging for documents and data. Charging commercial data resellers and the public for copies of records and bulk access to case files can cover some or all of the supporting technology costs. This is comparable to charging to make copies of files to cover the cost of paper and toner.
- Charging for the convenience. Some courts and other government organizations charge convenience fees for making payments online to cover the credit-card-processing fees. This can be extended to an online access service to recoup costs of implementation.
- Promoting online access. Marketing is key. Courts don’t often think of court records as a product to be marketed, and they’re not in the traditional sense. But the court community and the public in general must know their options. Think like a for-profit business and determine the best approach to getting the word out and ensuring your community knows what you are doing to promote access and convenience.
As the JTC Resource Bulletin “Courts Disrupted” points out, “As technology dramatically changes the way routine transactions are handled in other industries, courts can also embrace innovation as one way to enhance the public’s experience. Doing so may help courts ‘disrupt’ themselves, making justice available to a wider audience at a lower cost while preserving fairness, neutrality, and transparency in the judicial process.”
The JTC and IJIS Institute continue to prioritize court-data access and exchange through 2019 and beyond. Each are supporting several initiatives, including promoting further open data standards, as well as future phases of testing automated redaction and data extraction.
About the Author
Jenny Bunch is the product owner of ImageSoft, Inc., a software development company with a focus on intelligent workflow automation. She has over ten years of experience working in the justice industry, both in software development and side-by-side with clerks and judges implementing software solutions. She is a member of the IJIS Court Advisory Committee and previously served on the NACM Communications Committee, where she contributed to the annual guide for court managers in 2014 and oversaw the Top 10 Court Websites Award nomination and selection process for three years. She holds a master’s degree in public administration, and she is a certified Project Management Professional (PMP).