The Supreme Court of the state of Minnesota, USA, in its issuance docketed as In re: Supreme Court Advisory Committee on Rules of Public Access to Records of the Judicial Branch, No. C4-85-1848, January 21, 2004, adopted certain statements and rules on public access to judicial records within the said state.
I wish to digest hereinbelow the salient parts thereof for legal research purposes of jurists and lawyers regularly visiting this blog. Other jurisdictions might wish to explore the ideas contained in the Minnesota rules. Thus:
1. There was a growing national debate over whether and to what extent court records should be accessible electronically. Among the many issues were: which records should be published on the Internet and what privacy protections are necessary; what databases should be accessible in whole or in part to the public; and what fees, if any, should be charged.
2. Historically, court records in paper format have been broadly accessible to any member of the public willing to travel to the courthouse. The policy reasons for such access include promoting public trust and confidence in the courts and providing public information and education about the results of cases and the evidence supporting them. Access to court records is becoming easier and much broader now that an electronic format replaces or augments paper. The Internet’s capacity to consolidate information into easily searchable databases means that the trip to the courthouse is a virtual journey accomplished with the click of a computer mouse. These changes have eroded the practical obscurity that individuals identified in court records once enjoyed, and requires a review of access policies to ensure that a proper balance is maintained between many competing and often conflicting interests including, but not limited to, protection against unsubstantiated allegations, identity theft protection, accuracy, public safety,
accountability of courts and government agencies, victim protection and efficiency.
3. Most crime victims prefer to minimize Internet access to victim identifiers and locators (e.g., name, address, etc.), because such access will lead to more victimization and revictimization through intimidation and embarrassment, and there is nothing positive gained from publishing victim identifiers and locators on the Internet. Victims may also benefit from some public access to location information, however, such as being able to document that a particular neighborhood has a high incidence of crimes. Similarly, solutions supporting the prevention of identity theft conflict with the goal of accuracy. One approach to counter identity theft is to minimize the amount of personal identifying information about individuals, such as social security numbers, dates of birth, addresses, telephone numbers, etc., that is conveniently accessible to the public from electronic court records. The less identifying information that is available, however, the greater the likelihood that individuals will be misidentified as having been the subject of certain court records such as money judgments or criminal convictions. Such inaccuracies can have far reaching consequences.
4. Some uses of court records may cause harm. It is impossible to distinguish between valid requests for information and those requests that may cause harm. Some potential harm can be minimized by legislative activity, such as fair credit reporting laws that require recipients of court information to verify and correct information. In addition, potential harms must be balanced with the potential benefits, such as the ability to screen potential employees/workers and keep government accountable.
5. Many times in emotional proceedings such as family court matters, domestic matters and other civil suits very personal and private information is disclosed. Allegations are made in these proceedings through affidavits which many times relay abusive, inappropriate or dysfunctional behavior between the parties and their children. For example, it is necessary for a domestic abuse victim to give specific facts regarding the abusive actions of his or her partner. A parent must also be specific regarding abuse and neglect when making a motion for change in custody. Access to this information by anyone at any time can create further embarrassment, harassment and victimization of the parties. Unsubstantiated allegations of abusive or inappropriate behavior also raise significant concerns. The overwhelming majority of petitioners in domestic abuse Order For Protection and other Harassment restraining order proceedings are representing themselves. A growing number of family court motions are also being handled without an attorney. Unrepresented litigants do not have the same ethical duties as a lawyer in such situations. Internet publication of non-meritorious allegations can harm a person’s reputation even if a final court order finds that the allegations are without merit. Those that really need access for a legitimate purpose (such as the media reporting on the development of a case) can obtain the information from the courthouse. Internet publication of allegations made in these types of actions can harm a person's reputation even if a final court order finds that the allegations are without merit.
6. The advisory committee looked at several approaches to attempt to resolve these policy issues: One approach is to simply allow Internet access to all court records that are accessible to the public in paper format, and make any necessary adjustments to both paper and Internet records. The second approach is to try and retain the same level of public access to paper records and publish only a limited amount of those records on the Internet.
7. Proponents of the first approach believe that: (1) requiring a person to come to the courthouse to get information that is available to the public is a restriction of the public’s legitimate use of information that is otherwise easily available in electronic format, thus the second approach is on shaky legal ground; (2) if there is a valid public use for a certain record in paper format it should be available on the Internet as well; (3) it is unrealistic to conclude that in the future the courts can have all their files in electronic format but only provide paper-based access at the courthouse; (4) where access is limited to the courthouse, commercial data brokers will harvest the information anyway and will make it available, and it will only be available to those who can afford to pay a broker’s fee; and (5) accuracy will only be improved by putting the records on the Internet and exposing problems.
8. Proponents of the second approach believe that: (1) there is a difference between “public” records and “publishing” records on the Internet; (2) publication of only certain records on the Internet is an expansion of existing public access at the courthouse and not a limitation on public access at all; and (3) limited information should be placed on the Internet only after procedures and rules are in place to protect privacy interests; (4) just because technology enabling Internet access is available does not mean that it should be used for all matters; and (5) if the first approach is taken (i.e., allowing all public, paper records to be published on the Internet), there will be a backlash of public opinion that will likely sweep broad categories of information completely out of public view.
9. There was nearly unanimous agreement by the advisory committee that some information deserves privacy protection, such as social security numbers, financial account numbers, telephone numbers, and street addresses of litigants, jurors, witnesses and victims of criminal and delinquent acts. To achieve that kind of protection, the judicial system needs a process for redacting private information before publishing the records on the Internet. The committee believes that this result is practical only if remote access is limited to documents that the courts themselves generate, such as the register of actions, calendars, judgment dockets, and judgments, orders, appellate opinions, and notices prepared by the court.
10. Judgments, orders, and notices prepared by the court have integrity in that they are the product of an adjudicatory process. The same may not be true of other documents. For example, while an affidavit filed by a party may truthfully reflect that a particular allegation has been made, the affidavit does not have the same integrity. In addition, the courts control the issuance of judgments, orders and notices. The burden of not including certain items for Internet publication should not unduly interfere with the preparation of these items. If a social security number or victim’s name needs to be included in a particular judgment or order, the court has the opportunity to prepare a publicly accessible paper version and an Internet accessible version without too much additional effort. The committee realizes that its proposal to allow Internet access to all case records that the courts themselves generate will require education of judges, attorneys and court staff in order to avoid exposing the judicial branch to significant liability or the type of criticism that undermines the public trust and confidence in the courts.
11. Several advisory committee members reminded the committee that it needs to consider all perspectives, including that of the poor, minorities, victims, jurors and witnesses. The committee learned that most victims of crime prefer that victim identifiers (name, address, telephone numbers, etc.) not be published on the Internet because such access will lead to more victimization and re-victimization. Some committee members believe that if the courts have to sacrifice protection of victims, jurors and witnesses in order to implement Internet access, then the courts simply should not implement Internet access. A majority of the committee agreed that victim, juror, and witness identifiers should not be accessible through the limited, court generated records that the committee believes should be accessible on the Internet.
12. A minority of the advisory committee believes that: (1) the details of marriage dissolution (except the fact that marriage dissolution occurred and the dissolution’s impact on real estate) are “nobody’s business” and that the mere requirement of court intervention to rescind the marriage contract should not change private business into a public matter; (2) traditional appellate remedies and freedom of speech are sufficient means to keep judges accountable so further accountability through public access is not necessary; and (3) access to Internet and paper records of marriage dissolution cases should be limited to a certificate of dissolution and a summary real estate title document. Other committee members, however, believe that limiting Internet access to court-controlled records, coupled with expanded closure of financial source documents discussed above), removes a significant amount of troublesome information from public access and that some public access is necessary to hold the court system accountable in these cases.
13. One advisory committee member believes that there is no need for the courts to “publish” criminal conviction information on the Internet in light of the publication of conviction information by the Minnesota Bureau of Criminal Apprehension (“BCA”),17 and in light of the fact that the court is bound to ensure that dissemination of conviction information does not obviate the rehabilitative goals of the criminal justice system. Other committee members noted, however, that the BCA makes publicly accessible only felony, gross misdemeanor, and targeted misdemeanor conviction information for a period of 15 years after discharge form sentence, and that records that the BCA cannot match with fingerprint files are not publicly accessible. These committee members also pointed out that conviction information is necessary for background checks on all potential employees (not just those for whom statutes mandate a background check) and tenants. Thus there is a need for court publication of conviction records.
14. A minority of the advisory committee believes that any unsubstantiated allegations in civil court records (e.g., marriage dissolution affidavits) and in criminal case records (e.g., unproven charges) should not be published on the Internet because:
(1) it will ruin innocent lives; (2) it is wrong to use an individual’s tax dollars to publish or abet others who publish, unsubstantiated allegations against that individual; (3) current law makes statewide compilations of arrest and detention data private; and (4) ripple effects from racial profiling, for example, can result in a disparate impact on communities of color.
15. The advisory committee’s preliminary recommendation on Internet access should be viewed as the first step in a go-slow approach to providing more remote access to information. As indicated above, courts that have simply begun posting all public records on the Internet have encountered numerous problems and have had to pull back and reconsider their policy in light of privacy concerns raised by persons identified in the records. The committee agreed that the potential for damage to individuals necessitates a careful approach.
16. The advisory committee has preliminarily recommended that the same limitations on Internet access to records be applied to bulk data, such as databases that contain the elements of online computer systems. The rationale here is that the absence of limitations on bulk data renders the online remote access limitations moot as commercial data brokers will simply take the bulk data and make it available online. A minority of the committee believes that bulk data access should be provided to all data that is accessible to the public in any format.
17. The advisory committee also discussed the fees to be charged for bulk data. It suggests that “reasonable fees” should be charged for bulk data. The State Court Administrator’s Office currently charges by the kilobyte for bulk data, and waives all but the copy costs for media and educational and noncommercial scientific institutions whose primary purpose is scholarly or scientific research, as long as the recipients agree to sign a fee waiver agreement that restricts the use of the data to non-commercial purposes. Some advisory committee members believe that the courts should sell bulk data at high fees and use the proceeds to balance budgets and cover costs such as public defenders and computer system development. Other members believe that bulk data will only be accessible to sophisticated, capital-backed groups and that the average person will not have any meaningful access to bulk data. The implementation of new data warehouse tools might eventually allow the public to obtain reports online. Additionally, commercial data brokers will continue to harvest case records on a case-by-case basis and market their own bulk and online systems. A majority of the advisory committee believes that bulk data should not be put on the Internet but should be sold for profitable fees. A minority of the committee believes that bulk data should be accessible on the Internet and that fees should be limited to actual costs of providing the data.
18. Another issue highlighted in the Report is the development of a policy on correction of inaccuracies in court records. Although inaccuracies have occurred from time to time in paper-based court records, the advent of Internet publication will significantly magnify the potential for harm that such errors can cause. Procedures have long existed for correcting paper case records, and the advisory committee has recommended practical approaches to properly correct clerical errors in case records. There are some clerical or data entry-type errors that a court administrator can correct without the need for a court order. These include changes to the calendars and indexes. Changes to orders and judgments and other parts of the record, however, require formal legal action to correct. The advisory committee is aware of errors such as the wrong address or even the wrong name recited in a criminal complaint. Such errors may surface during preliminary court hearings where corrections are conveniently made or authorized by the court. Such errors can also surface informally in a telephone call to court administrative staff who in turn may either point out the requirements for obtaining relief by motion or refer the matter to the source of the record (e.g., the prosecutor) who then takes appropriate steps to rectify the situation (e.g., a motion or corrected filing).
19. One recommendation of the advisory committee is that juror questionnaires used to supplement oral examination of jurors in civil cases be sealed. These supplemental questionnaires can contain highly personal information. Although the same issue exists in criminal cases, there are constitutional issues involved. The Minnesota Supreme Court has recently determined that individual answers to supplemental juror questionnaires in criminal cases may be sealed only after there has been a balancing of the juror’s privacy interests, the defendant’s right to a fair and public trial, and the public’s interest in access to the courts. There must also be a finding that there is a substantial likelihood that conducting the voir dire in public would interfere with an overriding interest, including the defendant’s interest in a fair trial and the juror’s legitimate privacy interests in not disclosing deeply personal matters to the public.
20. The advisory committee also recommended a change with respect to the treatment of social security numbers and financial information submitted in marriage dissolution cases. Current law and court rules direct parties to submit the social security number on a separate, confidential information sheet, and to submit tax returns in a confidential envelope. The ultimate responsibility for failure to redact the social security numbers currently lies with the court administrator. Such redaction is time consuming, and, in a file with numerous documents, the possibility of missing just one social security number is great. The committee believes that it is appropriate to place the redaction burden on the persons who submit the documents to the court. With the increasing number of unrepresented litigants in family law cases, however, the committee understands and recommends that this burden must be accompanied by clear education of litigants involved in these cases. The committee also agreed that financial account numbers and other financial source documents such as wage stubs, credit card statements and check registers should also be protected.
21. A minority of the advisory committee believes that some witness identifiers such as addresses and telephone numbers should be kept out of public view entirely. Public access to witness identities does promote accountability. The majority of the committee believes that existing procedures for closing individual records remains an appropriate solution to address certain individual situations. Historically, dating back to the English system, the identity of witnesses assisted the community in determining the honesty of a witness. This may be particularly important in the case of expert witnesses whose opinions can be important to the outcome of cases.
22. The advisory committee considered what remedies, if any, are available when a court record custodian fails to comply with the ACCESS RULES. Although court employees can be disciplined for such violations, disciplinary action may not compensate for any resulting damages. For example, what remedy is available to a business owner whose trade secret information is improperly disclosed by a court administrator contrary to a protective order? What remedy lies for a person who has had criminal charges dismissed and expunged, but who later loses a job opportunity because court staff improperly disclosed the expunged record? What would be the basis for a damages claim in such situations, and what, if any, immunity would apply?
23. The possibility of official liability exposure against the government entity (as opposed to an individual court employee) exists under the state tort claims act, which authorizes claims for “injury to or loss of property or personal injury or death caused by an act or omission of an employee of the state while acting within the scope of office or employment.” Statutory exceptions to this liability, also referred to as statutory immunity, exist where an employee is exercising due care in the execution of a valid or invalid statute or rule, or is performing a discretionary duty, whether or not the discretion is abused. Although judges certainly have authority to exercise discretion in making decisions about access to records, court administrators typically do not. Thus, in the absence of due care, a claim for damages under the state tort claims act for a court administrator’s improper disclosure of records would likely not be shielded by statutory immunity.
24. Similarly, the common-law doctrine of official immunity insulates discretionary action of a public employee at the operational level (as opposed to the planning level), but the discretion exercised must be more than a ministerial act. To be ministerial, the duty must be absolute, certain and imperative, involving merely the execution of a specific duty arising from fixed and designated facts. As discussed above, judges have discretionary authority in regard to record access issues, but court administrators typically do not. Thus, a claim for damages under the state tort claims act for a court administrator’s improper disclosure of records would likely not be shielded by common-law official immunity.
25. The possibility of individual liability exposure exists under the federal deprivation of rights statute. Although the state and its employees cannot be sued in their official capacity under this federal statute, state officials may be sued in their individual capacity under this federal statute, subject to available common law immunities. The United States Supreme Court has granted absolute immunity from personal liability to a very limited class of officials whose special functions or constitutional status requires complete protection from suit, including the President, legislators carrying out their legislative functions, and judges carrying out their judicial (i.e., adjudicatory) functions. These same officials receive at best only a reduced or qualified immunity from personal liability for administrative employment decisions. Lower courts have issued conflicting decisions on whether court administrative staff is clothed with this same immunity when performing a duty that is part of a judicial process. Given the ministerial nature of the duty of court administrative staff to protect certain records from public disclosure, it is unlikely that the federal courts would extend immunity to a wrongful disclosure situation.
26. Publication of private facts requires: (1) public disclosure; (2) of a private fact; (3) which would be offensive and objectionable to a reasonable person; (4) which is not of legitimate public concern; and (5) which proximately caused damages to plaintiff. Although newsworthiness is a complete bar to the recovery of damages, the bar may apply only when the facts at issue were contained in a record that is accessible to the public. The tort may not be recognized when the private facts are communicated only to a single person or small group of people. Thus, if the recipients of wrongfully disclosed court records do not further disclose the records, there may be no liability. If the recipients redisclose or publish the records, the claim would appear to be viable.
27. The advisory committee is also aware of the liability for executive branch agencies for violations of the Data Practices Act; such liability includes: (1) civil action against the governmental unit for damages, including costs and attorneys fees, plus a exemplary damages of up to $10,000 if the violation is willful; (2) injunctive relief; and (3) action to compel compliance including attorney fees and a civil penalty of up to $300 if the court compels compliance. Willful violations also create personal exposure for individuals in the form of misdemeanor criminal charges and just cause for suspension or dismissal from employment.
28. Some advisory committee members believe that it is not fair to impose the executive branch Data Practices Act liability on a court because the scope of the court’s role is so much broader than the typical executive branch entity, a court cannot reasonably control every piece of information that makes its way into the court’s files, and the fear of such liability will stifle public access and result in denials of hundreds of daily access requests that are now routinely granted. For example, if a judge fails to keep all social security numbers or victim identifying information out of a judgment or order and then files it with the court administrator, who then provides public access to the judgment or order, it is the court administrator who will be sued for the violation, not the judge. The next time a request for similar documents arises, the court administrator will seek legal counsel who will advise the administrator to disclose it only if the recipient agrees to indemnify the administrator or the court issues an order authorizing the disclosure. The time and cost associated with obtaining such an agreement or order has the potential to bring effective public access to a halt. Such problems are not present if liability is limited to willful or malicious disclosures only.
29. Other advisory committee members favor liability for inadvertent disclosures, citing recent case law (invasion of privacy tort discussed above) that allows a damages claim for disclosure of social security numbers by a private entity, and the absence of a complete shutdown of access under the current exposure to liability. These members also question whether the court can in essence trump the state tort claims statute by declaring that there can be no liability for anything other than willful or malicious violations of the ACCESS RULES. Other members explain that establishing the limits of liability is a part of establishing the duty to protect certain court records. The court has established immunity by court rule in other contexts that include record access duties.
30. At the request of the Minnesota Supreme Court Implementation Committee on Multicultural Diversity and Racial Fairness in the Courts, the state courts have recently begun to collect race data from litigants in criminal, traffic, and all juvenile court matters. The litigants in these cases are asked to fill out a race census form and the court staff then enters the race information into the trial courts’ online computer systems. The paper forms are not retained in the court files related to the case and are destroyed after the data is entered. Currently, race census data are not displayed on public access terminals attached to these online systems, but the race census data are available in copies of the databases that are provided to the public.
31. The advisory committee is aware of the sensitive nature of this race census data. Before finalizing its report to the Supreme Court, the committee will solicit the input of the Implementation Committee on Multicultural Diversity and Racial Fairness in the Courts as to whether public access to race census data should be: completely prohibited expect by court order (which presumably would mean that some researchers might be permitted access by court order); (2) prohibited only when access is sought via the Internet; (3) wide open.
