Courts are rapidly becoming a gold mine of information for private companies that re-sell case information for such purposes as credit, criminal record, and rental history checks. This session will address issues surrounding the use of court information for public purposes, including what information should be available to non-parties, who is responsible for ensuring its accuracy, whether courts should charge for access and on what basis, and how long information should be available?

1. #AIIM14
#AIIM14
#AIIM14
Public
Records
–
Private
Purposes
Access
to
Judicial
Records
in
an
Electronic
World
Nial
Raaen,
CRM
Principal
Court
Management
Consultant
Na;onal
Center
for
State
Courts
nraaen@ncsc.org

2. #AIIM14
Why
an
Open
Judiciary?
§ To
ensure
that
proceedings
are
fair
§ To
monitor
and
hold
courts
accountable
§ A
forum
for
public
concerns
about
crime
§ Public
educa;on
about
the
judiciary
§ Promote
more
ac;ve
ci;zen
par;cipa;on

3. #AIIM14
A
Court
Records
Timeline
The
Paper
Age
Through
the
1970s
court
records
are
paper-­‐based
and
“prac;cally
obscure”
The
Database
Age
1980s
–
1990s
Introduc;on
of
case
management
database
systems
makes
records
more
available
The
Digital
Document
Age
2000s
on..
Expanding
use
of
digital
imaging
coupled
with
database
systems

4. #AIIM14
Document
Imaging
PracBces
§ Preserve
and
archive
legacy
documents
§ Public
access
to
legacy
documents
§ Back-­‐file
and
scan-­‐on-­‐demand
approaches
§ Scan
forward
for
improved
workflow
and
access,
paper-­‐on-­‐demand
§ Imaging
has
complicated
the
picture

5. #AIIM14
The
Court
InformaBon
Mine
§ Felony
and
misdemeanor
§ Non-­‐criminal
traffic
§ General
civil
&
small
claims
§ Landlord-­‐tenant
§ Protec;on
orders
§ Divorce
and
custody

6. www.aiim.org/infochaos
Do
YOU
understand
the
business
challenge
of
the
next
10
years?
This
ebook
from
AIIM
President
John
Mancini
explains.

7. #AIIM14
Commercial
Uses
of
Court
Records
§ Employment
background
inves;ga;ons
§ Criminal
history
§ Outstanding
civil
judgments
§ Credit
ra;ng
§ Renter
background
checks
§ Legal
research
services
§ “Pay
for
view”
pos;ngs

8. #AIIM14
Criminal
Background
Checks
§ An
es;mated
65
million
people
have
criminal
records
(Na;onal
Employment
Law
Project)
§ 87%
of
employers
conduct
background
checks
(Society
for
Human
Resource
Management)

9. #AIIM14
Court
Files
May
Be…
§ Fully
public
§ Public
with
nonpublic,
private
or
sensi;ve
documents
or
informa;on
contained
within
the
file
§ Ordered
closed
at
a
later
stage
§ Fully
non-­‐public

10. #AIIM14
§ FOI
does
not
apply,
most
case
informa;on
is
fully
public
§ But
restric;ons
include:
§ Case
types
are
confiden;al
(adop;ons,
juvenile)
§ Specific
informa;on
is
non-­‐public
(vic;m
info.)
§ Access
policies
vary
across
the
country

11. #AIIM14
Non-­‐Public
Records
§ Juvenile
records
§ Adop;on
records
§ Presentence
reports
§ Grand
jury
records
§ Medical
and
psychiatric
treatment
records
§ Proprietary
business
informa;on
…
and
more

12. #AIIM14
Accessing
State
Court
Records
“Access
to
court
records
is
determined
on
a
discre;onary
basis
on
the
basis
of
interpreta;on
of
rules
of
the
court…anecdotal
evidence
would
suggest
that
there
are
significant
varia;ons
in
the
extent
to
which
court
documents…are
made
generally
accessible”
(Philip
Leith/Maeve
McDonagh,
New
Technology
and
Researchers’
Access
to
Court
and
Tribunal
Informa;on)

13. #AIIM14
What’s
Different
Today
§ Decreasing
costs
of
storage
§ Increasing
demand
for
electronic
access
§ Business
opportuni;es
created
by
data
access
§ Ease
of
distribu;on
§ Increasingly
sophis;cated
search
engines
§ Data
manipula;on
tools

14. #AIIM14
US
Courts
PACER
System
§ 25
years
in
opera;on,
e-­‐filing
started
in
2002
§ Includes
case
and
document
management
system
access
pursuant
to
2007
rules
§ Fee
based,
requires
sekng
up
an
account
§ 500
million
documents,
available
upon
filing
§ Filer
must
redact,
some
pre-­‐2003
documents
not
available

15. #AIIM14
The
Balance
§ Individual
privacy,
confiden;ality,
security
§ Copyright,
data
protec;on,
commercial
interests
vs.
§ Judicial
transparency
§ Public
right
to
know
§ Economic
benefits

16. #AIIM14
Fair
Credit
ReporBng
Act
Places
ObligaBons
on
Commercial
Vendors
§ Generally,
can’t
report
arrests
more
than
7
years
old
§ Use
“reasonable
procedures”
to
insure
“maximum
possible
accuracy”
§ Special
rule
when
public
record
informa;on
is
reported
for
employment
purposes
(concurrent
no;ce
or
strict
procedures
to
be
complete/current)

17. #AIIM14
The
Challenges
§ Legacy
documents
may
predate
informa;on
protec;on
legisla;on
§ Interpre;ng
terminology
and
abbrevia;ons
§ Reliability
of
redac;on
techniques
and
technology
for
born-­‐digital
records
§ Correc;ng/upda;ng
disposi;ons
§ Guaranteeing
authen;city

18. #AIIM14
Problems
with
Consistency
§ Reten;on
periods
vary
across
states
§ Local
prac;ces
for
destruc;on
are
inconsistent
§ Responsibility
for
redac;on
and
informa;on
protec;on
is
locally
determined
in
some
states
§ Terminology
may
be
jurisdic;on-­‐specific

19. #AIIM14
Concerns
with
Commercial
Use
§ Inaccuracies
(upon
receipt
or
publica;on)
§ Problems
with
individual
iden;ty
§ Repor;ng
of
obsolete
arrests
§ Mul;ple
repor;ng
of
single
case/incident
§ Not
excluding
expunged
cases
§ Not
upda;ng
judgments/disposi;ons

20. #AIIM14
This
Could
be
Your
Lucky
Day!

21. #AIIM14
Look
What
I
Found!
Donkers
v.
Calandro
et
al
MICHIGAN
EASTERN
DISTRICT
COURT
Nature
of
Suit:
440
Civil
Rights
-­‐
Other
Case
No.
4:05-­‐cv-­‐40058
Defendants
William
Leo
Cahalan
David
J.
Calandro
John
Doe
John
D.
Ferry
Jr.
Daniel
Flanagan
Deborah
L.
E.
Green
Dawn
A.
Monk
Nial
Raaen
Joseph
A.
Schewe
Alan
E.
Skrok
State
Court
Administra;ve
Office
Show
More
PlainBff
Christopher
James
Donkers

22. #AIIM14
Different
PerspecBves
§ Paper
and
electronic
records
should
be
treated
the
same
for
access
purposes
and
open
to
all
§ Electronic
records
access
should
be
limited
to
the
courthouse
and
registered
par;es,
not
rou;nely
disseminated
for
public
viewing

23. #AIIM14
Responsibility
for
RedacBon
§ Duty
for
iden;fica;on
and
redac;on
rests
with
filers
(federal
model)
§ Duty
rests
with
court
staff
to
redact
informa;on
and
control
release
(Florida
model)

24. #AIIM14
Are
More
Controls
Needed??
§ “Cer;fica;on”
of
reques;ng
en;;es
or
individuals
reques;ng
bulk
data?
§ Regula;on
or
limita;on
of
data
re-­‐use?
§ Increased
third
party
liability
for
upda;ng?
§ Required
subscrip;on
to
regular
updates?
§ “Inten;onal
obscurity”?

25. #AIIM14
Criminal
Background
Issues
§ What
right
or
redress
do
individuals
accused
or
convicted
of
crimes
have
to
ensure
accuracy
of
the
records?
§ What
is
the
impact
on
the
privacy
rights
of
criminal
defendants?
§ Will
vic;ms
and
witnesses
be
assured
that
their
privacy
interests
are
accounted
for?

26. #AIIM14
Unanswered
QuesBons
§ What
is
the
cost
of
enhanced
public
access?
§ Does
enhanced
access
compromise
public
safety?

27. #AIIM14
Who
Should
Pay?
§ Many
courts
charge
fees
without
conduc;ng
a
cost
assessment
§ Should
courts
profit
from
access
fees?
§ Should
access
fees
be
dedicated
for
technology,
privacy
controls?
§ Do
different
charging
structures
impact
the
kinds
of
documents
courts
make
available
and
their
formats?
§ Should
intended
use
be
a
basis
for
sekng
the
fees?

28. #AIIM14
How
Long
is
Too
Long?
§ Should
there
be
increased
obliga;ons
for
data
collectors
to
“sunset”
informa;on?
§ Should
a
“right
to
forget”
be
created?
§ Who
would
have
the
duty
to
remove
records
to
protect
a
“right
to
forget”?
§ Should
court
record
reten;on
periods
be
revised?

29. #AIIM14
Digital
Rights
Management
§ Restrict
who
can
read
or
has
rights
to
a
document
§ Restrict
how
long
a
document
is
available
§ Restrict
prin;ng
and
forwarding
§ Require
logging
onto
a
specific
network
for
access
§ Is
user
registra;on/tracking
a
privacy
issue?
§ Is
this
a
prac;cal
op;on
in
the
long
run??

30. #AIIM14
The
Future…
§ Disappearance
of
paper
records
systems
§ More
demand
for
digital
audio/video
recordings
of
court
proceedings
§ Embedded
video
and
audio
files
will
become
part
of
the
“court
record”
§ Reten;on
periods
need
to
be
reconsidered

31. www.aiim.org/infochaos
Do
YOU
understand
the
business
challenge
of
the
next
10
years?
This
ebook
from
AIIM
President
John
Mancini
explains.