Notices: Comments sought on court records recommendations

first_imgNotices: Comments sought on court records recommendations Comments sought on court records recommendations The Judicial Management Council of Florida has submitted its Report and Recommendations on Privacy and Electronic Access to Court Records with the Florida Supreme Court.The court invites all interested persons to comment on the council’s report and recommendations. The introduction of the report and the council’s recommendations are reproduced below. The full report and recommendations are available on the Supreme Court press page of the court’s website at www.flcourts.org/pubinfo/sctpress.html. An original and seven copies of all comments must be filed with the court on or before May 15, with a certificate of service verifying that a copy has been served on the chair of the Judicial Management Council, Justice Major B. Harding, The Florida Supreme Court, 500 South Duval Street, Tallahassee 32399-1925, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument which will be scheduled in this case on June 5. IN THE SUPREME COURT OF FLORIDA IN RE: REPORT AND RECOMMENDATIONS OF THE JUDICIAL MANAGEMENT COUNCIL OF FLORIDA ON PRIVACY AND ELECTRONIC ACCESS TO COURT RECORDS, CASE NO. SC02-659. I. Introduction: Information and Privacy in the Digital Age The emergence of electronic information management technology and the Internet are causing widespread transformations in American society. New ways of communicating and sharing information are changing the way people interact with cultural, economic, and governmental institutions. Such changes do not always occur smoothly, and difficult issues have arisen. Among the most challenging of these issues is that of personal privacy. The balance between the free flow of information and the protection of personal privacy has been altered; institutions and individuals are now grappling with how a new balance should be struck.The digital storage and transfer of information changes how information can be manipulated and retrieved. Previously obscure information can be located quickly for essentially no cost, as well as copied, transmitted and analyzed. This expanded capacity creates the ability to use information in ways that were previously impossible or impractical. Personal information – from shopping preferences to personal finances to digital photographs – can be handled in bulk and used for commercial purposes. Information can be exploited for criminal or voyeuristic purposes more easily. These and other issues raise deep concerns about the use of information for purposes other than those for which the information was initially provided. “People’s hair would stand on end,” says Michigan Attorney General Jennifer Granholm, “if they realized how much information about themselves is being sold.” 1There is a particular concern where the entity that gathers or transmits information is a government entity. Because citizens often do not have a meaningful opportunity to refuse to provide information needed for governmental purposes, they feel that government is behaving intrusively when that information is used for purposes other than those for which the information was initially provided. People have a strong aversion to the release of personal information by the government. 2Perhaps no part of government gathers a range of information that is as broad or as intimate as that gathered by courts. The sensitive nature of information in court files must be carefully considered as Florida contemplates electronic access to court records. In discussing policy in this area, four overarching points must be understood:• Court files contain deeply personal and intimate data about citizens – information about every conceivable aspect of human existence can and often does enter into court records. • Court records are public records, with some exceptions – anyone can come to the courthouse and read or copy most court documents. • Emerging technology has created the capacity to make images of court records available electronically – court documents would be accessible anytime, anyplace, by anyone. • There are practical and technical challenges in identifying and protecting information that is not intended for disclosure – information that is confidential or exempt from disclosure may be inadvertently made available though electronic access.Electronic access holds great promise for the courts in terms of improved access and efficiency. But adaptation to new ways of communicating requires a period of transition, during which older practices, customs and expectations are transformed to accommodate the new technology. 3 F lorida’s courts have just begun such a period of transition.The judicial branch of Florida should move thoughtfully and deliberately forward in developing policies that achieve the benefits of electronic access. But such access must be implemented in a manner that is respectful of people’s privacy and does not undermine the ability of the courts to fairly administer justice. Until policies are developed that appropriately balance privacy with access, and which support the core mission of the courts to do justice, unrestricted electronic access to court records should not be available. II. Recommendations The Judicial Management Council sought to address three questions in its preliminary inquiry into the issue of electronic access to court records. As expressed by the chair, 4 t hese are: 1. Does the Supreme Court have a role in formulating statewide policies on access to court records, or does responsibility for policy in this area rest elsewhere?2. If the Court does have a responsibility to develop statewide policies, what steps should be taken to ensure that such policies are developed and implemented?3. If statewide policies are to be developed, should there be a moratorium on electronic access to certain court records until such policies are developed and implemented?Below are recommendations in the form of answers to these three questions, and a fourth recommendation supporting a rule change that defines relevant terms:1. Does the Supreme Court have a role in formulating statewide policies on access to court records, or does responsibility for policy in this area rest elsewhere?The Supreme Court has broad responsibility under article V, section 2, of the Florida Constitution for the administrative supervision of all courts, including setting policies regarding court records. The Court has said:We conclude that the clerks of the circuit courts, when acting under the authority of their article V powers concerning judicial records and other matters relating to the administrative operation of the courts, are an arm of the judicial branch and are subject to the oversight and control of the Supreme Court of Florida, rather than the legislative branch. 5Emerging technologies, including electronic access, hold great promise for advances in the efficiency, effectiveness and openness of the courts. The Supreme Court must ensure, however, that in the management of court records, information protected by statute or court rules remains secure from improper disclosure. Furthermore, the Court must carefully consider other potential impacts of electronic access: public trust and confidence in the courts must not be undermined; citizens’ privacy must be respected; and access and privacy policies must be consistently applied in all parts of the state. For these reasons, the Supreme Court should develop comprehensive policies that set out guidelines on access to court records.2. If the Court does have a responsibility to develop statewide policies, what steps should be taken to ensure that such policies are developed and implemented?The electronic availability of court records implicates important values and has specific and substantial affects on a number of constituencies. Creating and implementing appropriate policies in this area will be a complex and ongoing task, requiring a search for consensus on difficult issues, and a sustained commitment. The experiences of fellow states and the federal judiciary suggest that the development of policy in this area should not occur without broad participation by citizens and practitioners as well as representatives of affected constituencies.The Judicial Management Council should be directed to oversee development of policy recommendations in this area. The Judicial Management Council is an appropriate body to undertake this task because of its composition and mandate to advise the Supreme Court “on issues related to the efficient and effective administration of justice that have statewide impact, affect multiple levels of the court system, or affect multiple constituencies in the court and justice community.” 6The Council should create a committee for purposes of addressing this issue. Several members of the Council should serve on this committee, including Council representatives of the Florida Association of Court Clerks, The Florida Bar, the Governor’s legal office, both houses of the Legislature, the Florida Council of 100, and judges from the appellate, circuit, and county benches. In addition, the committee should include representatives of: a privacy advocacy organization, a media advocacy organization, law enforcement, appellate court clerks, trial court administration, court committees with responsibility for technology, case management, and performance accountability, and any other constituency whose participation would assist the committee.Following a policy development process, with ample opportunity for public input, the Judicial Management Council should advance specific substantive recommendations to the Supreme Court, including proposed rules of court.3. If statewide policies are to be developed, should there be a moratorium on electronic access to certain court records until such policies are developed and implemented?A moratorium should be imposed. While increased electronic access to court records offers the promise of significant improvement in the efficiency and effectiveness of the courts, as well as improved access and public oversight, substantial challenges are presented which must be explored before electronic access to images of court records is permitted. In the absence of statewide policy guidance, there is a substantial risk that information in court records that is confidential or exempt from disclosure will be released, or that information that is not confidential or exempt from disclosure will be wrongfully withheld. Until these challenges and others are addressed, court records should not be available electronically to the public.The Chief Justice should therefore issue an administrative order directing the clerks of the circuit courts to refrain from providing electronic access to images of court records to the public until further notice. The restriction should apply to images only; indexes of images as well as docket and case information can be made available. Court records which are official records should not be covered by the restriction.4. Additional recommendation.The Supreme Court Workgroup on Public Records has petitioned the Florida Supreme Court to amend court rules to adopt definitions for the terms “records of the judicial branch,” “court records” and “administrative records” found in Florida Rules of Judicial Administration 2.051 and 2.075. 7 T hese definitions should be adopted. 1 Tracking the web of data you weave, Dana Hawkins, US News and World Report Online, October 2, 2000. 2 In 1999, Florida law was amended to allow the Department of Highway Safety and Motor Vehicles to provide driver’s license photos in digital form, and other identifying information such as address, physical description, and facsimile of a signature, to a company which would in turn incorporate the photos and information into an identification system for retailers to consult before accepting checks and credit cards. The intention was to reduce identity theft and credit card fraud. House Majority Leader Tom Feeney, who had backed the law, was surprised by the reaction of citizens when they learned of the plan: “People felt violated,” he said, “. . . they reacted viscerally to the idea that the government was transferring personal information without their approval.” The law was repealed. The Privacy Panic, Christopher Conte, Governing, December, 2000. 3 & #x201c;The Internet represents a unique and wholly new medium of worldwide human communication.” Reno v. ACLU, 521 U.S. 844 (1996). (Internal quotations omitted.) 4 Letter from Major B. Harding to Jacqueline Griffin, July 2, 2001. 5 Times Publishing Company v. Ake, 660 So 2d 255 (Fla. 1995). 6 Rule of Judicial Administration 2.125(a)(1), Florida Rules of Court. 7 I n Re: Report of the Supreme Court Workgroup on Public Records. SC01-897.center_img April 15, 2002 Regular Newslast_img read more