A staggering amount of personal information is contained in federal court records, almost all of which is available to the public by federal law-- but relatively little of it available in electronic formats that promote greatest public accessibility, ease of use, and remote public access through online means. Locating information about, and within, the legal arena, therefore, can be a time-consuming task, requiring no small amount of digging among paper courthouse records in an attempt to piece together information to inform advocacy activity. You Get What You See(?) To date, the definition of electronic documents filed with federal courts consists of either electronic images of paper documents or original documents filed directly via electronic means (word processor files, e-mail, etc.). To varying degree, depending upon the court, filings have been available via the twelve year old Public Access to Court Electronic Records (PACER) system. PACER lets the public access federal court decisions, as well as both the list of documents filed for a particular case (known as the docket sheet or docket) and some of the very documents themselves. PACER requires users to register for a user name and password, in order to track who accesses certain information in the event problems arise. All federal district courts, courts of appeals, and bankruptcy courts are currently moving to implement a new Case Management/Electronic Case Files (CM/ECF) system by 2005. CM/ECF was previously tested on a free basis in federal bankruptcy courts, and will reportedly enable all federal courts to receive information from attorneys and litigants through the Internet (the CM part). Under an expanded service called PACERNet, registered PACER users will have remote online access to electronic filings (the ECF) part. In addition, federal courthouses will expand access to PACER access via free public computer terminals at each federal courthouse. The rub, however, is that users will be charged a fee of US$0.07 per page to view, download, or print filings via PACER/PACERNet (compared to a US$0.50 per page photocopying fee you can expect at some courthouses). Access versus Privacy While some interests (especially journalists and researchers) have welcomed the increased level of court filings available electronically, other concerned about the privacy and security protections around personal information contained in court records. This is because those court records contain valuable personal information on individuals, such as bank account numbers and social security numbers, not to mention testimony about private lives and habits. Joanna Glasner, in a 2/26/01 Wired News article, cites a representative of the U.S. Courts system who suggests that advocacy is currently divided among three camps. There are those who like the idea of open access, those who are against it, and those who would support it if there are standards for classifying or redacting certain forms of sensitive information. The U.S. Courts system itself lays out some of the current restrictions regarding electronic access to court records (only available, curiously, in Acrobat PDF format). For the most part, there are relatively few obstacles for any individual to access information on trials and court proceedings-- including testimony and documents containing sensitive personal information. Well, okay, there are two main barriers: actually making it to a federal courthouse, and understanding what you are looking for (and at). But if you are involved with a particular legal matter, you may not be informed of every request to access that information. Moreover, once someone sees information, it can be compromised in a variety of ways, simply by distributing it in a flyer, reading the contents on a radio or television show, or printing it in a newsletter or newspaper. So what's the difference with making that same information available online? The issue raises a number questions regarding the nature of access to information itself. One major question is whether there should be more protections and/or limitations regarding online access to the same information available to others offline. One key difference, raised by open access advocates, is that not everyone has the same access to online tools, as well as knowledge around the significance of the information they might encounter. By making the information available online, and providing for access from a range of online access points-- be it the home, schools and libraries, and other venues-- the public can begin to become better informed about an important, yet intimidating, branch of government. Ironically, the latter point around understanding the information is an argument made by those against access to court records online. Those voices point out that there is a relatively self-selecting pool of folks who go through the trouble of accessing information at a courthouse, and this group generally knows what it is accessing. For whatever it's worth, some individual federal courts have websites that, at the very least, provide descriptions as to the types of information available on their premises, and what's required for access. Sometimes information on trial schedules, complaints, and court decisions-- especially if they are anticipated to have large-scale public interest-- are posted on those sites. Without further refinement, neither view can safely assume that the information gathered will not be used in some manner harmful to others, whether intentionally or unintentionally. Trying to lay out some set of standards laying out what information is available online, meanwhile, raises issues around determining a rationale for keeping information hidden from the public in electronic form, versus making it physically accessible in a courthouse. Meet the Federal Courts For those NPTalkers here (and abroad) not familiar with the structure of the federal courts system in the U.S., a quick primer will help provide a framework for understanding how the federal courts are addressing the access versus privacy debate with respect to electronic court records and filings. The U.S. Congress established the Conference of Senior Circuit Judges in 1922 to determine the rules and policies with respect to the administration of the U.S. courts system. Twenty-six years later, Congress changed the name to the somewhat catchier Judicial Conference of the United States. At a general level, the 27-judge Conference is responsible for:

• periodically reviewing the operations of United States courts (including filed orders for circuit council conduct and disability);
• conducting ongoing assessment and evaluation of the general rules and procedures within federal courts laid out by the Supreme Court;
• overseeing the process by which judges are assigned to, or transferred among, district courts and courts of appeals;
• providing suggestions on how courts can adopt and implement uniform management procedures and practices which expedite cases.

Federal district courts are where federal trials are conducted. There are 89 federal district courts divided among the 50 states (a number of states of multiple districts), as well as a district court for the District of Columbia, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands, for a total of 94 federal judicial districts. In addition, this level of courts also includes the U.S. Bankruptcy Courts, U.S. Court of International Trade, and the U.S. Court of Federal Claims. The number of judgeships appointed to each district is laid out in Title 28 Section 133 of the U.S. Code. Federal cases are appealed by either side to one of the federal court of appeals. There are 12 regional Circuit Courts of Appeals, and one U.S. Court of Appeals for the Federal Circuit. The number of judgeships for the courts of appeals is set under Title 28 Section 44 of the U.S. Code. The U.S. Supreme Court is the highest court in the nation. It consists of the Chief Justice of the United States and eight associate justices. At its discretion, it hears cases from federal and state courts around issues of constitutional and federal law. The Chief Justice of the United States presides over the Judicial Conference, and provides Congress with an annual report of both the recommendations from and proceedings of its annual meeting. The report serves as the basis of legislation regarding the operation of the courts. The meeting is usually broken up into two sessions, usually held in September and March at the Supreme Court Building in Washington, DC (although this can vary at the discretion of the Chief Justice). In addition to the Chief Justice, the Judicial Conference consists of the 13 chief judges from the federal courts of appeals; one district judge from each of the 12 judicial circuits; and the chief judge of the Court of International Trade. The district judges are elected for a 3-5 year term on the Conference, depending upon a vote of a majority of all the district and circuit court judges from the particular circuit represented. Members of the Conference serve on advisory committees, appointed and assigned by the Chief Justice (although members can ask for assignments, and recommend others), for a maximum of two three-year terms. Committees consist of a myriad of subcommittees conducting research and study on specific topics of concern to court operations. The Conference is coordinated by a seven-member executive committee, appointed by the Chief Justice, which makes decisions for the Conference in between sessions, and sets rules for its deliberations, implemented by the Director of the Administrative Office of the United States Courts. The office of the director coordinates support for the both the Executive Committee and the Judicial Conference itself. Federal Courts State Their Case The Administrative Office of the U.S. Courts posted a request for comments on 11/16/00 regarding policy options for electronic and online access to federal court records. The Judicial Conference's Subcommittee on Privacy and Electronic Access to Case Files of the Court Administration and the Case Management Committee issued the request, which was accompanied by an explanatory website (and yes, it allowed comments to be filed electronically). Some 240 comments on the document containing those options were received by the 1/26/01 deadline. Both the document and the comments received are still available on the site. Here's a summary of the options considered with respect specific to different types of case files. Civil Case Files The first option was to amend Rule 11 of the Federal Rules of Civil Procedure, in order to address security and privacy concerns, to maintain some harmony with existing print copies of federal courthouse records. A second option was to assume that, unless counsel specifically requests a seal (or the judge orders one), all documents filed are to be made available to the public via paper copies at the courthouse and through electronic means. The third option would define a uniform and consistent set of guidelines regarding what documents belong to a public file, which would then be available both electronically and physically at the courthouse. The trick here would be defining the set of documents necessary to help the public understand a case that also respects privacy and security concerns of the parties involved. The last option provided was to designate different levels of remote electronic file access through technology tools. The idea would be to provide unlimited remote electronic access only to the parties and personnel most directly involved. This would, however, still making the full electronic case file publicly accessible at the courthouse itself, much like the paper file of the case, and would not place limits on how electronic files could be copied or circulated once accessed. Criminal Case Files One option was to provide only limited access to certain types of files. Documents such as pre-sentence reports, plea agreements, and unexecuted warrants, however, would be available only to the presiding judge, core court personnel, and parties involved as well as their counsel. The second option was to not provide any public access to electronic version of these files through the courts. This option is rooted in two arguments. First, the issues raised by other types of court files are not applicable to criminal case files. This is because hey are not extensive enough to take up huge amounts of space in non-electronic form, and attorneys on both sides are in close enough proximity to the courthouse that any files can be accessed from them or the courts directly. The second argument concerns the potential to compromise ongoing law enforcement activities, as well as the safety of others related to a particular trial. Pre-trial information, such as warrants and indictments, if released to the public, might compromise ongoing criminal investigations. The release of details around plea-bargains involving co-defendants might place families in jeopardy of retaliation from associates of other defendants. Bankruptcy Case Files Currently all documents filed in these proceedings must be made available to the public, and judges have limited capacity to seal certain documents from public view. One proposal was to make certain types of information available only to the parties involved, and allowing judges to close off access to documents due to concerns around privacy and security. A second option was to reduce the level of information required on certain documents filed in proceedings (like petitions, schedules, and statements). A third proposal was to disaggregate sensitive information by placing certain data across a set of forms, and making some of them closed to the public. The last proposal in this area involved limiting the use of account numbers to the last four digits on all documents field. Appellate Case Files The proposal was to treat these filings under the same rules applicable to information at the trial level. Any information order sealed or available with restrictions to the public at the trial level, might retain that level of protection at the appellate level, unless there is a challenge at the appeals level to those restrictions. And Now... The Verdict After receiving comments, the Administrative Office held a hearing on 3/16/01, in order to allow representatives from the information access, lawmaker, legal, media, privacy, and public interest communities to voice their concerns and ideas with respect to public access to information. This hearing served as a precursor for the Conference to make a set of policy recommendations. The Conference's 14-judge Committee on Court Administration and Case Management approved a set of recommendations in the form of a 6/26/01 report. This report was released to the public on 8/15/01. Here's a summary of the recommendations: Civil Cases: Documents should be made available in electronic form to the same extent they are available at the federal courthouse, unless counsel for either side in a case files a motion to specifically request a seal regarding the blocking of electronic access to the documents (or the judge orders one). Social Security case files are to be excluded from this recommendation (though the files would continue to be made available for full access at federal courthouses). These files are excluded because they are the continuation of administrative proceedings, and are considered confidential until they are made part of a district court proceeding initiated by a claimant. These files also contain sensitive personal and medical information, which is deemed only of critical and legitimate use to the courts than the public at large. A policy recommendation was also made to truncate personal identifier information, so that only the last four digits of Social Security numbers, a person's birth year (and not full date), and a minor's initials, would be made available in both electronic and paper court filings. Criminal Cases: The report recommends, for now, that no remote electronic public access be provided to documents in criminal cases. It does, however, ask that the Conference reconsider the policy within two years. Criminal docket sheets will continue to be made available through courthouses, certain court websites, and the PACER system. Bankruptcy Cases: As with the recommendation for civil case filings, bankruptcy case filings were recommended to be made available to the same degree electronically as they are at the federal courthouse, and to truncate personal identifier information in electronic records. The committee also approved amending the appropriate sections of the federal Bankruptcy Code and Rules to allow judges to seal documents based on privacy and security concerns, and to enable courts to collect full Social Security numbers from debtors, while only displaying the last four digits in electronic filings. Appellate Cases: For the purposes of remote electronic access, documents filed at the appellate level should be treated as they are at the trial or agency The full Judicial Conference will consider the recommendations outlined in the report for adoption during its next meeting, set for 9/11/01 in Washington, DC. If they are approved, a formal policy will be drafted through the Administrative Office of the U.S. Courts. Discussions would also need to occur with Congress about amending the aforementioned sections of the U.S. Code and Bankruptcy Rules. What's Next? Public access to information in the judicial arena is important for nonprofit advocacy, and individual citizens, because it fosters (and hopefully reinforces) our perceptions of a fair, open, accountable legal system and third branch of government. Just as technology has helped us better understand the workings of our elected officials and agencies, which provide the services we rely upon, the courts, stand to benefit from the efficiency with which it can meet the public's demand and expectations with respect to information. Those members of the public and public interest community involved in law-related activity also stand to benefit from the savings of resources in providing and accessing information that helps to inform their work and advocacy. It is interesting to note that the recommendations, as a whole, do not address a more basic concern with regards to access to court records in general: what happens when sensitive or personal information is accessed and released. Federal courts, again, have a legal obligation to provide public access to many, but not all, court records. This obligation also provides that the public can, under most circumstances, inspect and make copies of documents. While this is not an unfettered privilege, federal rules of procedure do not spell out how courts should provide access to case files, or the standards governing the orders judges issue with regards to how information is to be sealed (or unsealed). As such, judges have the widest latitude in affecting the terms of what information can be made available, through the orders can issue affecting filings in court records. Even the two laws most people might normally consider in terms of protections around both access and privacy are actually limited in terms of the protections they offer with respect to information in court records. The federal Freedom of Information Act (FOIA)and the federal Privacy Act both offer citizens the right to ask for access to records collected and maintained by the federal government. FOIA gives this right to any citizen, while the Privacy Act grants it only to the person who is the subject of those records. While FOIA covers all federal agency records (barring nine exemptions and three law enforcement exclusions), the Privacy Act only covers information collected and stored by government in a system of records retrieved (but not necessarily retrievable) by a person's name or other personal identifier (like Social Security number). Now the kicker: the federal FOIA and the federal Privacy Act only apply to the federal executive branch, not the judicial or legislative branches, or to state and local governments. Individual states and localities have their own laws and procedures regarding privacy, security, and access to records. On the surface, the Judicial Conference recommendations seem to only remove a few barriers of convenience to accessing information via remote electronic access. Citizens wishing to access information might need to employ comparable levels of effort and knowledge to locate what is sought online and offline. The recommendations, however mildly, do suggest that just because access is possible for some types of information, it is not an absolute right to actually use that information for whatever purposes one may choose, particularly if is employed to cause harm to other parties. From a practical standpoint, it only takes one set of hands and/or eyeballs to make personal information available to a wider audience, no member of which can be said to have interests or motives that are more pure or noble than another. Barring the time and cost of locating and accessing a document, there may be little appreciable difference between an individual obtaining and copying information at a courthouse for later electronic reproduction, and a person who downloads an image or text file version of a court document. Either one, depending upon their motives or limits of conscience, is in a position to make that information available to others. Public access, government interests in records security and integrity, and individual privacy concerns are held in a constant tension in the arena of legal information. What is not clear is how technology, despite its stated potential benefits, can ensure that all three are respected without careful thought paid to the policy goals sought. What is certain is the degree to which our society may just have to rely on a more literal notion of "your honor" with respect to court records in an online world. Resources Cited PACER 2/26/01 Wired News Joanna Glasner "Privacy and Access to Electronic Case Files in the Federal Courts" Administrative Office of the U.S. Courts (staff paper) Title 28 Section 133 of the U.S. Code Title 28 Section 44 of the U.S. Code Judiciary Privacy Policy Comments website Rule 11 of the Federal Rules of Civil Procedure 6/26/01 Report Committee on Court Administration and Case Management Judicial Conference of the United States Federal Freedom of Information Act (FOIA) Federal Privacy Act