Dolan Media Newswire Story
Subject: Halting Web access to court documents concerns many Oklahoma attorneys
Pub: The Journal Record
Author: Marie Price
Category: Justice,Justice
Sub-Category: Courts,Law/Legal Services
Issue Date: 03/13/2008 Word Count: 76
Halting Web access to court documents concerns many Oklahoma attorneys
by Marie Price
Dolan Media Newswires
© Dolan Media Newswires 2010.OKLAHOMA CITY, OK -- Oklahoma First Amendment attorneys are concerned about the Oklahoma Supreme Court’s attempt to juggle public access to court records against privacy concerns.
The court issued new rules Tuesday that require redaction of personal information from court filings and prohibit the posting of pleadings and other filings on the Internet.
Web access will be limited to dockets only. Currently, in some counties the public can access petitions and other filings online.
The new rules take effect June 10.
Oklahoma City attorney Bob Nelon said the part of the rules that concerns him most is the prohibition of online access to court documents.
“When you have the technology to make access more readily available to the public through access on the Web, it’s a step backwards to deny that access,” he said.
Nelon said he was hoping that at some point the Supreme Court would require all counties to use the same computer system and make all documents available online.
“But obviously the court’s going in an opposite direction here, which is very disturbing,” he said.
Under the new rules, documents may be filed with unredacted data under seal, with leave of the court. The judge involved may require a redacted copy for the public record.
“The rule is certainly open to abuse,” said Nelon.
There may be cases, he acknowledged, where it is just not practical to redact all of the information required by either federal or state rules, so a document needs to be filed under seal.
“I think courts are going to have to be vigilant that the exception doesn’t consume the rule, and everybody starts filing under seal simply to avoid having to redact or partially redact personal data identifiers,” Nelon said.
He said he assumes most judges will be resistant to allowing documents to be filed under seal.
The court rules require redaction of Social Security numbers, taxpayer ID numbers, names of minor children, dates of birth, financial account numbers and home addresses.
The new rules also allow filers to redact information about driver’s licenses, medical records, employment history, individual finances, proprietary or trade secret information, an individual’s cooperation with the government, data about a crime victim and national security information.
On Wednesday, Chief Justice James Winchester said the main reason for the new rules is to protect individuals from identity theft. He said the court is concerned about publicizing Social Security numbers, bank account numbers and other personal information.
Winchester could not cite an instance in which a person’s identity was stolen through use of the state court information system.
He also said the rules are not permanent, and that more information may be added to the court computer system when it is fine-tuned.
Nelon said the redaction requirements are similar to federal rules and what other states do to protect personal information.
“There has been an increasing concern with the privacy of, especially, third parties who are not the actual parties to litigation,” he said.
Nelon said this includes witnesses and others who identifying information may be included in court filings.
However, he said that in the new state rules home addresses are considered personal identifiers. In federal cases, he said, home addresses are not redacted except in criminal cases.
Both Nelon and Tulsa First Amendment attorney Doug Dodd said they were unaware the justices were considering such rules.
“I sort of gather from the dissent that there was no public input on this,” Nelon said.
In partial concurrence and dissent, Justice Yvonne Kauger said that at the very least she would have asked for input from the Oklahoma Bar Association and the public.
“What I disagree with is the instantaneous restriction of public access to current public court documents online,” said Kauger.
She suggested testing the new redaction rules by continuing to allow a few counties to make documents available online, working out any kinks now rather than waiting until all 77 counties are online and the rules must be tested on a grand scale.
Nelon said there may be legal arguments that, so long as the technology is available and the Legislature has funded it, the court cannot by rule close a system that is accessible to the public by arguing that people can go to the courthouse to retrieve paper documents.
Nelon said obtaining paper documents from faraway counties can be a difficult prospect for attorneys and the public alike.
Dodd said he has concerns on a number of levels.
He said Oklahoma has been working on expanding online access to pleadings for several years.
“I’m struggling with why it would be necessary to pull that back,” he said.
Dodd particularly questioned why the court would stop counties that currently provide online access, “while the others are trying to get there.”
“There seems to be no advantage of stopping everything until everybody’s ready, because they’re not dependent upon each other,” he aid.
Dodd also cited an issue raised by Kauger, that filing fees were increased $15 for the very purpose of improving computerization in all counties.
“Now that we’re not having access to pleadings, do the filing fees go down?” he asked.
Dodd said he sees that the court is trying to protect personal privacy. However, he said there is an understanding under current rules that court pleadings and other filings are public records, unless there is an appropriately granted and requested protective order. With a protective order, he said, only certain things are filed under seal, with the judge as gatekeeper.
“That is a big change,” he said of the redaction requirement.
Dodd said the parties are in the best position to know whether certain information needs to be protected.
“There is an option for parties to protect that, and I think it’s probably better to leave that in the hands of the litigants to take care of, rather than making a prohibition that may not be necessary,” he said.
Dodd expressed concern about language in the new rules that allow for filing more documents under seal.
“It tends to make the court system, from to back more closed rather than more open,” he said. “One of the important hallmarks of our justice system, forever, is that our justice system, for the most part, is open.”
The rule change was criticized by Oklahoma State University professor Joey Senat, past president of FOI Oklahoma, and Mark Thomas, executive vice president of the Oklahoma Press Association.
“It sounds like a knee-jerk reaction to technology that gives the public greater access,” Senat said.
Thomas said the rules will allow court clerks to make money from copying fees and work an inconvenience on the public.
“I think the court and the court clerks are underestimating the popularity of electronic access to court records,” he said.
Dodd said there could be some challenge to the rules, or at least a request for further review by the court.
“It all just popped up,” he said. “Nobody knew it was coming, that I’m aware of, until the order came down.”
Dodd said Oklahoma was the first state to make its appellate court decisions and dockets available online, with other states following suit. He said it also provides a free research service for court decisions, attorney general opinions, statutes and the Oklahoma Constitution.
“If we’re moving in the direction of trying to get to a more paperless system and a system that’s open and available to the citizens as well as lawyers and groups, et cetera, it seems that this is a big step back,” he said. “We ought to be attempting to make information about the courts and about cases more available to people, not less available.”
The Associated Press contributed to this story.
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