AIJA Annual Conference

1
AIJA Annual Conference

• Court Documents in the Electronic Age Privacy
  and Access
• Frances Joychild
• Law Commissioner (NZ)
• 9 October 2005

2
Terms of Reference

• Review current rules and law on access to court
  and tribunal records and recommend new rules
• Specifically consider how format of record
  (electronic) should affect access rules

3
Open justice - the principle

• Open justice means
• Court hearings to which any member of the public
  can attend
• Public (incl media) access to information the
  court uses in coming to its decision (whether or
  not presented orally)

4
Open justice the reason?

• Ensures proper administration of justice by
• Ensuring judicial accountability -safeguard
  against judicial arbitrariness or idiosyncrasy
• Maintains public confidence in administration of
  justice justice is being seen to be done
  without fear or favour

5
Open justice the exceptions

• If public hearings would hinder the
  administration of justice they can be dispensed
  with. (Scott v Scott).
• Humiliation not enough Prevention from accessing
  justice is. Protection of vulnerable valid
  reason.
• Parliament sets boundaries (eg issues re children
  and young persons, mental health, gives courts
  some discretion on case by case)

6
Court records in electronic form ( E Records)

• All Federal Courts USA now require e filing (mid
  2005). E filing E records.
• Many state courts have it or progressing towards
• Canada, Australia are moving in that direction
• New Zealand Sup Ct C of A (civil) Maori Land
  Court, Employment Ct rules enable it.
• Inevitable development in all courts in all
  comparable jurisdictions

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CharacteristicsE records

• Transmit and retrieve records instantly
• Replicate records instantly at negligible cost
• Gain access from anywhere not only courthouse
• Simple software enables data mining instant
  searching organising manipulating of
  information
• Information can be stored in perpetuity at
  negligible cost and in minimal storage space

8
E Records - Benefits

• Convenience and cost for parties and counsel
  (PACER experience)
• Potential to shorten disposition time
• Expanded access to court record by media,
  researchers, general public i.e. open justice is
  facilitated (no practical obscurity less hit
  and miss coverage

9
E record Other consequences

• Expanded use of court records by commercial
  enterprises, identity thieves, predators,
  stalkers. Information of most value
• full names, ages, addresses (adults and
  children) phone and other contact details tax
  returns financial statements property
  ownership customer lists and other confidential
  business info personal relationship history
  medical information unique identifier numbers
  criminal convictions
• Compromised right to fair trial (past info online
  and accessible by juries etc)

10
The access to e record vs privacy debate

• USA, Canada, Australia 2000 2005
• (range of judicial and other committees have
  considered the issues)
• 2001 USA -COSCA unanimous open justice a
  constitutional principle that overrides the
  fundamental value of privacy (nb USA common law
  right to public records)
• Give third party e access to ct records but take
  some protective measures to protect personal
  privacy

11
The Access to e record vs privacy debate..4 yrs on

• Committee on Privacy and Court Records Supreme
  Court of Florida Aug 15, 2005
• Decision 54 to allow third party access to court
  records via www. Bare majority
• Majority open justice trumps but strong focus on
  privacy protections private info already on net
• Minority e access has chilling effect on
  potential court users. Ct has duty to limit use
  of court record to purposes for which information
  given to court.

12
The e access vs privacy debate

• New South Wales Supreme Court Sept 2004 draft
  policy on access to e records
• On line access to e records restricted to parties
  except for data exchange arrangements
• Daily court lists on website
• No agreement during community consultation

13
Privacy Values in New Zealand law

• Privacy Act 1993 exempts courts and tribunals in
  their judicial function
• Principle 10 11and 12 use info only for purpose
  collected dont disclose to others dont keep
  for longer then needed (exceptions to all)
• Broadcasting Act privacy principles
• Common law tort Invasion of privacy

14
Issues

• Would there be a chilling impact on
  administration of justice if unrestricted e
  access to court records?
• Privacy protections needed in accord with privacy
  values?
• Should court users be subject to wide array of
  direct marketing dating agencies nappy
  manufacturers
• Should court users be exposed to greater risks to
  personal or business security or privacy
  invasions simply because they have used courts?
• Maori Land Court specific issues

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Options for protecting privacy(1)

• Reduce or remove personal information from
  records prior to filing eg
• Remove middle groups of unique identifier nos.
• Reduce names to initials addresses to city
  dates of birth to year of birth
• Change forms so only essential info remains
• Apply for sealing record at time of filing
  effect to make record confidential until
  challenged (PACER)

16
Options for protecting privacy(2)

• No third party access to e records but e court
  calendars are put online (as in NZ Sup Ct)
• Differentiate between records e access only at
  courthouse for some docs /others can go online
• Serve docs on parties but file only Notice of
  Proceeding in court (large majority settle so
  dont create court records until you have to)

17
Options for protecting privacy(3)

• Have a subscriber only service with conditions of
  use
• Track those who access files and keep a user
  record indefinitely

18
Bulk distribution (all or subset of ct info at
once)

• Do not provide any e access to bulk data?
• Selectively allow bulk access (judicial
  discretion/Registrar discretion)
• Use to which it will be put can be considered?
• Allow for credit reporting agencies, research but
  not direct marketers?

19
Media

• Facilitators of open justice - CR access enables
  fair and accurate reporting
• E medium enables greater coverage of admin of
  justice (1reporter for 16 courtrooms)
• Should there be additional access to what public
  have? (online only for media)
• Some jurisdictions have specific rules for media
  (NSW access to records until 2 days post trial)

20
Researchers

• E access provides great benefits for research
• Schedule 5 Privacy Act allows bulk access to data
  on Case Management System even where privacy
  restrictions but cant publish identifying
  details?
• Need ethical protocols?
• Accreditation of researchers?