A Dialogue On e-Access to Courts

At the November 28 meeting of the Sacramento Lawyer technology Users Group (SLUG), Superior Court Judge Ronald B. Robie spoke on "Technology and the Courts." Robie, who was elevated to the Third District Court of Appeal after his address to SLUG, is an old friend of SLUG, having addressed this SCBA section back in the days when SACJIBBS, the Sacramento Judicial Information Bulletin Board System, was the only way to get tentative rulings online.

e-Access: Justice Robie concentrated on e-access. He brought with him an October 2001 report to the Judicial Council recommending adoption of uniform statewide rules for public access to electronic trial court records, including scanned images of filed papers. (The proposed rules do not limit access to court calendars, case indexes, and the register of actions.) Cal. Code Civ. Proc. § 1010.6 requires the Judicial Council to adopt uniform rules for trial court electronic filing and access by January 1, 2003. The rules in these areas are part of a trend away from local court rules and toward statewide uniformity. A similar report on e-filing was scheduled to be presented to the Judicial Council in the near future.

Two principles: Justice Robie recited two principles behind the October report: a distinction between electronic and paper records, and "practical obscurity." Electronic records, according to the report, differ from paper records in three important respects: (1) ease of access, (2) ease of compilation, and (3) ease of wholesale duplication.

What's "practical obscurity?" The phrase "practical obscurity" comes from the U.S. Supreme Court case of U.S. Dep't of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). There, a press organization made a Freedom of Information Act request for an individual's FBI rap sheet, which was a computer-stored summary of his criminal history. (The criminal history includes charges of which the subject was acquitted.) In discussing the individual's privacy interest in his criminal history, the court noted that "the issue here is whether the compilation of otherwise hard-to-obtain information alters the privacy interest implicated by the disclosure of that information." 489 U.S. at 764. It pointed to "the vast difference between public records that might be found after a diligent search of courthouse files ... and a computerized summary located in a single clearinghouse of information." Id. Reasoning that the courthouse files were obscure as a matter of practicality, the court found that the individual's privacy interest in the same information, as compiled in his rap sheet, was strong enough to outweigh any public interest in disclosure of the rap sheet.

If you can't find the item, it's practically obscure. The "practical obscurity" principle counsels care in what the court puts out onto the Web, for electronic records are much more searchable than paper ones.

Location, location: What if you have to go to the courthouse to do an electronic search? An interesting application of the "practical obscurity" principle gives limited protection to information in certain sensitive types of cases: family law, juvenile, guardianships and conservatorships, mental health, civil harassment, and criminal law. The limited protection is that terminals open to the public in the courthouse will carry these types of records, while the Web won't. Terminals on-site must additionally have everything that's available remotely.

Sealing: The alert attorney will ask, what about sealing the sensitive parts of the record? Many want to seal Social Security numbers to guard against risks of identity theft. Justice Robie pointed to a recent rule requiring specific findings as a prerequisite to sealing. One sensitive paper record, the probation report, is filed publicly first, then the court is asked to seal it.

This raises the question of how to limit or redact the public record electronically. The proposed e-filing rules, he said, specify XML technology, which provides for data fields that are accessible only on-site, not remotely. This could hide a Social Security number from public view on the Web. Absent sealing of all Social Security numbers, however, one wonders whether identity thieves could take advantage of the courthouse terminals to ply their trade.

SLUG Meetings: SLUG meets at noon on the third Wednesday of the month at the Delta King. Subscribe to the Sacramento County Bar Association Listserv or see the County Bar's event calendar at www.sacbar.org for details. In the lineup for 2002: January 16, LEXIS Time Matters; February 20, Corel WordPerfect 2002; March 20, Amicus Attorney; April 17, Computer Forensics with Mark Menz. Reserve your place and menu choice with Timothy Miller at 446-4469 or tmiller@diepenbrock.com.