In Re: Public Access Policy of the Unified Judicial System of Pennsylvania Case Records of the Appellate and Trial Courts

EXPLANATORY REPORT
PUBLIC ACCESS POLICY OF THE UNIFIED JUDICIAL SYSTEM OF
PENNSYLVANIA: CASE RECORDS OF THE APPELLATE AND TRIAL
COURTS
GENERAL INTRODUCTION
Recognizing the importance of the public's access to the courts and with the
Supreme Court’s approval, the Administrative Office of Pennsylvania Courts (AOPC)
has developed statewide policies governing access to court records. Protocols have been
implemented for access to electronic case records in the Judiciary's statewide case
management systems, magisterial district court case records, and financial records of the
Unified Judicial System (UJS). In 2013, the AOPC embarked on the next phase of policy
development designed to address access to case records of the trial and appellate courts.
This latest effort is necessitated by the confluence of several factors. The
proliferation of e-filing systems and related decisions to post (or not post) case records
online (as part of document imaging or e-filing systems) on a county-by-county basis has
resulted in disjointed accessibility to the UJS's trial court case records. A county may
post all divorce and custody records online for viewing, perhaps for free, and a
neighboring county may not. Online posting of sensitive information contained in case
records, such as social security numbers, currently depends upon geography. Surveys
conducted by the AOPC also revealed the treatment of sensitive information contained in
paper case records maintained by the filing offices varies widely. For example, whether a
social security number is available to a member of the public who wishes to view the
records of a particular case in a filing office depends upon local practices.
The implementation of e-filing in Pennsylvania's appellate courts and future
initiatives at other court levels is also a catalyst for policy development. While appellate
court opinions, orders and dockets have been online via the UJS’s website for over a
decade, the e-filing of appellate briefs and related legal papers raises basic questions that
should be considered when a court undertakes such a project, for instance: What
sensitive information must be redacted? Who is responsible for ensuring the appropriate
information is redacted?
At the state and local level, the Judiciary is moving forward into the digital age,
and it clearly needs to give thoughtful consideration to its systems and procedures to
ensure equal access to the UJS's trial and appellate case records. Disparate filing and
access protocols certainly impede the statewide practice of law in the Commonwealth.
Litigants and third parties, some of whom are unrepresented or are not voluntary
participants in the judicial process, may be left in the dark as to whether their private,
personal identifiers and intimate details of their lives will be released (online) for public
viewing.
1
Government and the private sector collect extensive amounts of personal data
concerning individuals' finances, unique identifiers, medical history and so on. Many of
these types of data are relevant to the cases that are before the courts for decision, and
some data is provided in court filings even though irrelevant to the matter before the
court. Therefore, like other branches of government and the private sector, the courts are
constantly considering issues regarding the need for openness and transparency and the
concern for personal privacy and security.
With regard to the courts, however, the constitutional and common law
presumption of openness has to be carefully weighed against relevant practical,
administrative considerations when crafting solutions to avert breaches of privacy and
security. Striking the right balance is not an easy task.
The public's right to access court proceedings and records is grounded in the First
and Sixth Amendments of the U.S. Constitution, Article I §§ 7, 9, and 11 of the
Pennsylvania Constitution, and the common law. While there is overlap between the
common law and constitutional analyses, there is a distinction between the two.
Specifically, the constitutional provisions provide a greater right of access than the
common law.1 However, these constitutional and common law rights are not absolute
and may be qualified by overriding interests. A more extensive discussion of the right to
access is contained in the Explanatory Report of the Electronic Case Record Public
Access Policy of the Unified Judicial System of Pennsylvania.2
Therefore, with the approval of the Supreme Court, the Court Administrator of
Pennsylvania convened a working group to study and develop a proposed policy for
public comment. Under the experienced and dedicated leadership of Commonwealth
Court Judge Renée Cohn Jubelirer and Montgomery County Court of Common Pleas
Judge Lois E. Murphy, the working group undertook its charge with an open mind and an
aim to appropriately balance the competing interests at hand. The group consisted of
judges, appellate court filing office personnel, local court personnel, two
Prothonotaries/Clerks of Courts, one Register of Wills/Clerk of Orphans’ Court, and
representatives from the Pennsylvania Bar Association and the rules committees of the
Supreme Court, as well as AOPC staff.
Before developing a proposed policy, the working group studied and discussed
the different types of records pertaining to criminal, domestic relations, civil, juvenile,
orphans’ court and appellate matters filed in the courts. Tackling each case type
individually, the working group considered existing legal restrictions and other
jurisdictions' access policies on the release of data and documents. In formulating
whether information and documents should be considered confidential, the group also
determined how access would be limited. There are categories of information that are
completely restricted, such as social security numbers, and categories that are restricted
1
See Commonwealth v. Long, 922 A.2d 892 (Pa. 2007).
2
Explanatory Report is found at: http://www.pacourts.us/assets/files/page-381/file-
833.pdf?cb=1413983484884
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from online viewing by the public but remain available for public inspection at a court
facility, such as original and reproduced records filed in the appellate courts.
The working group published its proposal for a 60-day public comment period3
and received thirty-two submissions. The comments reflected diverse, and sometimes
conflicting, viewpoints, which helped the working group define the issues and find
solutions. In doing so, the working group endeavored to find as much "common ground"
as it could in reviewing and addressing the various comments.
In crafting its proposal, the group was guided at all times by the long-standing
tradition of access to court records and the important interests it serves, as follows:
to assure the public that justice is done even-handedly and fairly; to
discourage perjury and the misconduct of participants; to prevent
decisions based on secret bias or partiality; to prevent individuals from
feeling that the law should be taken into the hands of private citizens; to
satisfy the natural desire to see justice done; to provide for community
catharsis; to promote public confidence in government and assurance that
the system of judicial remedy does in fact work; to promote the stability of
government by allowing access to its workings, thus assuring citizens that
government and the courts are worthy of their continued loyalty and
support; to promote an understanding of our system of government and
courts. Commonwealth v. Fenstermaker, 530 A.2d 414, 417 (Pa. 1987)
(citing Commonwealth v. Contankos, 453 A.2d 578, 579-80 (Pa. 1982)).
However, the group also recognized that transparency of judicial records and proceedings
must be balanced with other considerations in this Internet age. The group attempted to
strike the appropriate balance between access and interests involving the administration
of justice, personal privacy and security -- particularly with regard to online records.
Also essential to the group's evaluation were practical considerations, such as the
methods of redaction to be implemented and identification of various "best practices" that
should be instituted statewide.
The working group provides the following relevant commentary for the sections
of the policy.
SECTION 1
The definitions incorporate elements of those found in existing UJS public access
policies and other authorities.
This policy governs access to (1) official paper case records of appellate courts,
courts of common pleas, and Philadelphia Municipal Court, (2) images of scanned or e-
filed documents residing in the three statewide case management systems, (3) images of
3
http://www.pabulletin.com/secure/data/vol45/45-6/222.html
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scanned or e-filed documents residing in the case management systems of the judicial
districts, and (4) case record information posted online by judicial districts via their own
“local” case management systems. This approach ensures a more equitable and
systematic approach to the case records filed in and maintained for the trial and appellate
courts.
It is important to note how this policy intersects with existing UJS policies,
namely the Electronic Case Record Public Access Policy of the Unified Judicial System
of Pennsylvania (hereinafter referred to as “Electronic Policy”) and MDC Paper Policy.
The Electronic Policy governs access to the electronic case record information, excluding
images of scanned documents, residing in the three statewide case management systems:
Pennsylvania Appellate Courts Case Management System, Common Pleas Case
Management System and the Magisterial District Judge System. Put simply, the
Electronic Policy governs what information resides on the public web docket sheets
accessible via the UJS web portal or is released to a member of the public requesting
electronic case record information from one of the systems.
The MDC Paper Policy governs access to the paper case records on file in a
magisterial district courts.
The definition of “financial source document” is derived from the definition of
“sealed financial source documents” used in Minnesota (Minn.G.R.Prac. Rule 11.01) and
Washington (WA.R.Gen. Rule 22(b)).
SECTION 2
This section's provisions are similar to those contained in the MDC Paper Policy,
which have been successfully implemented.
SECTION 4
Requestors may be unable to complete a written request, if required by a court. In
such circumstances, access should not be denied but may be delayed until the custodian
or designated staff is available to assist the requestor. If the request is granted, it may be
necessary for the custodian or designated staff to sit with the requestor and monitor the
use of the file to ensure its integrity. This is consistent with the responsibility placed
upon the custodian and designated staff for the security, possession, custody and control
of case records in Section 2.0(B). Such a practice is also consistent with the requirement
that addressing requests for access cannot impede the administration of justice or the
orderly operation of a court, pursuant to Section 2.0(C).
This section's provisions are similar to those contained in the MDC Paper Policy.
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SECTION 5
While implementing the provisions of this policy should not unduly burden the
courts and custodians or impinge upon the delivery of justice, it is reasonable for the
public to expect that courts and custodians shall respond to requests for access in a
consistent fashion. This section brings uniformity, in general, as to when and how courts
and custodians must respond to requests. Similar sections are found in the Electronic
Policy and MDC Paper Policy.
SECTION 6
Judicial districts have adopted different approaches to imposition of fees,
especially with regard to remote access to court records. Some impose a fee for
providing remote access because the costs associated with building and maintaining such
systems are often substantial. Given that remote access is a value-added service, not a
requirement, it is thought that those who avail themselves of this service should be
charged for the convenience of maintaining these systems.
Others do not impose fees for remote access because providing this service
reduces the “foot traffic” in the filing offices for public access requests. This, in turn,
frees staff to attend to other business matters, resulting in a financial benefit by reducing
costs associated with dealing with the requests over the counter. The AOPC has provided
“free” online access to public web docket sheets for cases filed in the appellate courts,
criminal divisions of the courts of common pleas and Philadelphia Municipal Court, as
well as the magisterial district courts for years. In 2014, 59 million of those web dockets
sheets were accessed online.
It is interesting to note that the two largest judicial districts in the Commonwealth
are at opposite ends of the spectrum (i.e., one has posted virtually all dockets and
documents for free, and the other posts some dockets for free but not documents). While
the working group recognizes that other factors play into these determinations (such as,
technological capabilities, statutorily mandated fees), judicial districts should ensure that
fees do not become a barrier to public access. Completion of statewide case management
systems in all levels of court will likely bring about standardization in remote access to
case records.
The working group notes that this section's provisions are similar to those
contained in the MDC Paper Policy.
SECTION 7
The concept of restricting access to particular, sensitive identifiers is not novel.
The Electronic Policy and MDC Paper Policy restrict access to social security numbers
and financial account numbers, for example. The federal courts, and many state court
systems, have restricted access to the types of identifiers that are listed in Section 7.0.
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The Electronic Policy and MDC Paper Policy provide that access to social
security numbers is shielded from release. Moreover, there are scores of authorities at
both the federal and state level that protect the release of this information. While some of
these authorities are not applicable to court records, they require access to this
information in government records be limited or wholly restricted. For example: 65 P.S.
§ 67.708(b)(6)(i)(A), 74 P.S. § 201, 42 U.S.C.A. § 405(c)(2)(C)(viii), F.R.Civ.P.
5.2(a)(1), F.R.Crim.P. 49.1(a)(1), Alaska (AK R Admin Rule 37.8(a)(3)), Arizona (AZ
ST S CT Rule 123(c)(3)), Arkansas (Sup. Ct. Admin. Order 19(VII)(a)(4)), Florida (FL
ST J ADMIN Rule 2.420(d)(1)(B)(iii)), Idaho (ID R Admin Rule 32(e)(2)), Indiana (Ind.
St. Admin. Rule 9(G)(1)(d)), Maryland (MD. Rules 16-1007), Michigan (Administrative
Order 2006-2), Minnesota (Minn.Gen.R.Prac. Rule 11.01(a)), Mississippi
(Administrative Order dated August 27, 2008 paragraph 8), Nebraska (Neb Ct R § 1-
808(a) and Neb. Rev. Stat § 84-712.05(17)), New Jersey (NJ R GEN APPLICATION
Rule 1:38-7(a)), North Dakota (N.D.R.Ct. Rule 3.4(a)(1) and A.R. 41(5)(B)(10)(a)), Ohio
(OH ST Sup Rules 44(h) and 45(d)), South Dakota (SDCL § 15-15A-8), Texas (TX ST J
ADMIN Rule 12.5(d)), Utah (UT R J ADMIN Rules 4-202.02(4)(i) and 4-202-03(3)),
Vermont (VT R PUB ACC CT REC § 6(b)(29)), Washington (WA. R. Gen. Rule
31(3)(1)(a)) and West Virginia (WV R RAP Rule 40(e)(3)).
With regard to financial account numbers, the Electronic Policy and MDC Paper
Policy provide that this information is not accessible. Many other jurisdictions have
taken a similar approach. For example: F.R.Civ.P. 5.2(a)(1), F.R.Crim.P. 49.1(a)(1),
Alaska (AK R Admin Rule 37.8(a)(5)), Arizona (AZ ST S CT Rule 123(c)(3)), Arkansas
(Sup. Ct. Admin. Order 19(VII)(a)(4)), Florida (FL ST J ADMIN Rule
2.420(d)(1)(B)(iii)), Idaho (ID R Admin Rule 32(e)(2)), Indiana (Ind. St. Admin. Rule
9(G)(1)(f)), Minnesota (Minn.Gen.R.Prac. Rule 11.01(a)), Nebraska (Neb Ct R § 1-
808(a) and Neb. Rev. Stat § 84-712.05(17)), New Jersey (NJ R GEN APPLICATION
Rule 1:38-7(a)), North Dakota (N.D.R.Ct. Rule 3.4(a)(1) and A.R. 41(5)(B)(10)(a)), Ohio
(OH ST Sup Rules 44(h) and 45(d)), South Dakota (SDCL § 15-15A-8), Vermont (VT R
PUB ACC CT REC § 6(b)(29)), Washington (WA. R. Gen. Rule 31(3)(1)(b)) and West
Virginia (WV R RAP Rule 40(e)(4)).
Concerning driver license numbers, the Electronic Policy provides that driver
license numbers should be protected. Moreover, there are many authorities at both the
federal and state level that protect the release of this information. While some of these
authorities are not applicable to court records, they require access to this information in
government records be limited or wholly restricted. For example: 65 P.S. §
67.708(b)(6)(i)(A), 75 Pa.C.S. § 6114, 18 U.S.C. §§ 2721 – 2725, Alaska (AK R Admin
Rule 37.8(a)(4)), Idaho (ID R Admin Rule 32(e)(2)), New Jersey (NJ R GEN
APPLICATION Rule 1:38-7(a)), Utah (UT R J ADMIN Rules 4-202.02(4)(i) and 4-202-
03(3)), Vermont (VT R PUB ACC CT REC § 6(b)(29)) and Washington (WA. R. Gen.
Rule 31(3)(1)(c)).
State Identification Numbers (“SID”) have been defined as "[a] unique number
assigned to each individual whose fingerprints are placed into the Central Repository of
the State Police. The SID is used to track individuals for crimes which they commit, no
6
matter how many subsequent fingerprint cards are submitted." See 37 Pa. Code § 58.1.
The Electronic Policy prohibits the release of SID. Furthermore, in Warrington Crew v.
Pa. Dept. of Corrections, (Pa. Cmwlth., No. 1006 C.D. 2010, filed Nov. 19, 2010)4, the
Commonwealth Court upheld a ruling by the Office of Open Records that a SID number
is exempt from disclosure through a right-to-know request because such numbers qualify
as a confidential personal identification number.
Other jurisdictions provide similar protections to minors’ names, dates of births,
or both. For example: F.R.Civ.P. 5.2(a)(1), F.R.Crim.P. 49.1(a)(1), Alaska (AK R
Admin Rule 37.8(a)(6)), North Dakota (N.D.R.Ct. Rule 3.4(a)(3) and
A.R.41(5)(B)(10)(c)), Utah (UT R J ADMIN Rules 4-202.02(4)(l) and 4-202-03(3)) and
West Virginia (WV R RAP Rule 40(e)(1)).
With regard to abuse victims' address and other contact information, Pennsylvania
through the enactment of various statutes has recognized the privacy and security needs
of victims of abuse. For example, Pennsylvania’s Domestic and Sexual Violence Victim
Address Confidentiality Act (23 Pa.C.S. §§ 6701 – 6713) provides a mechanism whereby
victims of domestic and sexual violence can shield their physical address (even in court
documents) and hence protect their ability to remain free from abuse. The Pennsylvania
Right To Know Law (65 P.S. §§ 67.101 – 67.1304) recognizes the potential risk of harm
which can be caused by the disclosure by the government of certain personal information.
For example, 65 P.S. § 67.708(b)(1)(ii) prohibits the disclosure that “would be reasonably
likely to result in a substantial and demonstrable risk of physical harm to or the personal
security of an individual.” Moreover, 23 Pa.C.S. § 5336(b) prohibits the disclosure of the
address of a victim of abuse in a custody matter to the other parent or party. 23 Pa.C.S. §
4305(a)(10)(ii) and (iii) provides that the domestic relations section shall have the power
and duty to:
“implement safeguards applicable to all confidential information received by the
domestic relations section in order to protect the privacy rights of the parties,
including: prohibitions against the release of information on the whereabouts of
one party or the child to another party against whom a protective order with
respect to the former party or the child has been entered; and prohibitions against
the release of information on the whereabouts of one party or the child to another
person if the domestic relations section has reason to believe that the release of
the information may result in the physical or emotional harm to the party or the
child.”
In addition, other jurisdictions have taken a measure to protect similarly situated
individuals, such as: Alaska (AK R Admin Rule 37.8(a)(2)), Florida (FL ST J ADMIN
Rule 2.420(d)(1)(B)(iii)), Indiana (Ind. St. Admin. Rule 9(G)(1)(e)(i)), New Jersey (NJ R
4
Pursuant to Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, an unreported
panel decision issued by the Court after January 15, 2008 may be cited “for its persuasive value, but not as
binding precedent.” 210 Pa. Code § 69.414(a).
7
GEN APPLICATION Rule 1:38-3(c)(12)), and Utah (UT R J ADMIN Rules 4-
202.02(8)(E)(i) and 4-202-03(7)).
To maintain the confidentiality of the information listed in subsection (A), parties
and their attorneys can set forth the listed information on a Confidential Information
Form, designed and published by the AOPC. This is akin to the procedure set forth in the
MDC Paper Policy; the Confidential Information Form used by that policy is posted on
the UJS's website at www.pacourts.us.
Alternatively, parties and their attorneys can file two versions of each document
with the court/custodian – one with sensitive information redacted (“redacted copy’) and
the other with no information redacted (“unredacted copy”). The redacted copy shall
omit any information not accessible under this policy in a visibly evident manner, and be
available for public inspection. The unredacted copy shall not be accessible by the
public. At least one other jurisdiction has implemented a similar approach. See WA. R.
Gen. R. 22(e)(2) (Washington). Some contend that a redacted copy of a document will
be more readable than an unredacted copy containing monikers as placeholders for
sensitive information not included in the document. This approach was also identified as
a more amenable solution given the current design of the statewide e-filing initiative.
While a court or custodian is not required to review any pleading, document, or
other legal paper for compliance with this section, such activity is not prohibited. If a
court or custodian wishes to accept the burden of reviewing such documents and
redacting the same, such a process must be applied uniformly across all documents or
cases. This provision, however, does not alter or expand upon existing legal authority
limiting a custodian's authority to reject a document for filing. See Nagy v. Best Home
Services, Inc., 829 A.2d 1166 (Pa. Super. 2003).
Courts that permit e-filing should consider the development of a compliance
“checkbox” whereby e-filers could indicate their compliance with this policy.
This section only applies to documents filed with a court or custodian on or after
the effective date of this policy. There will be a period of transition prior to full
implementation of this policy; that is, some documents filed with a court or custodian
prior to the effective date of this policy will contain information that the policy restricts
from public access. To expect full and complete implementation of this policy by
applying it retroactively to those documents filed prior to the effective day of this policy
is impractical and burdensome.
However, it is important to remember with regard to pre-policy records, a party or
attorney always has the option to file a motion with the court to seal, in whole or part, a
document or file. This includes the ability to request sealing and/or redaction of only some
information that resides on a document in the court file (e.g., a social security number on a
document).
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SECTION 8
The protocol of submitting to a court or custodian certain documents under a
cover sheet so that the documents are not accessible to the public has been instituted in
other jurisdictions, such as Minnesota (Minn.G.R.Prac. Rule 11.03), South Dakota
(SDCL § 15-15A-8), and Washington (WA.R.Gen. Rule 22(b)(8) and (g)). One manner
in which to implement this protocol (e.g., the need to separate a confidential document
within a file accessible to the public) is to maintain a confidential electronic folder or
confidential documents file within the case file, thus ensuring that the file folder with the
non-public information can be easily separated from the public case file, when access is
requested.
Concerning financial source documents, other jurisdictions have similar
provisions regarding such documents including Minnesota (Minn.G.R.Prac. Rule 11.03),
South Dakota (SDCL § 15-15A-8), and Washington (WA.R.Gen. Rule 22(b)(8) and (g)).
Similar protocols with regard to minors' education records are found in other
jurisdictions, such as Nebraska (Neb Ct R § 1-808(a) and Neb. Rev. Stat § 84-712.05(1))
and Wyoming (WY R Gov Access Ct Rule 6(a) and WY ST § 16-4-203(d)(viii)).
With regard to medical records, other jurisdictions have similar provisions
including Indiana (Ind. St. Admin. Rule 9(G)(1)(b)(xi)), Maryland (MD. Rules 16-
1006(i)), Nebraska (Neb Ct R § 1-808(a) and Neb. Rev. Stat § 84-712.05(2)), Utah (UT R
J ADMIN Rules 4-202.02(4)(k) and 4-202-03(3)), Vermont (VT R PUB ACC CT REC §
6(b)(17)), West Virginia (WV R RAP Rule 40(e)(1)) and Wyoming (WY R Gov Access
Ct Rule 6(t)).
Section 7111 of the Mental Health Procedures Act, 50 P.S. § 7111, provides that
all documentation concerning an individual’s mental health treatment is to be kept
confidential and may not be released or disclosed to anyone, absent the patient’s written
consent, with certain exceptions including a court's review in the course of legal
proceedings authorized under the Mental Health Procedures Act (50 P.S. § 7101). While
it is unclear if this provision is applicable to the public accessing an individual’s mental
health treatment records in the court’s possession, the working group believes this
provision provides guidance on the subject. Thus, such records should not be available to
the public except pursuant to a court order. See Zane v. Friends Hospital, 575 Pa. 236,
836 A.2d 25 (2003). Other jurisdictions have similar protocols, such as Maryland (MD.
Rules 16-1006(i)), New Mexico (NMRA Rule 1-079(c)(5)), Utah (UT R J ADMIN Rules
4-202.02(4)(k) and 4-202-03(3)), Vermont (VT R PUB ACC CT REC § 6(b)(17)) and
Wyoming (WY R Gov Access Ct Rule 6(p)).
Children and Youth Services' records introduced in juvenile dependency or
delinquency matters are not open to public inspection. See 42 Pa.C.S. § 6307 as well as
Pa.Rs.J.C.P. 160 and 1160. Introduction of such records in a different proceeding (e.g., a
custody matter) should not change the confidentiality of these records; thus, the records
should be treated similarly. These records are treated similarly by other jurisdictions,
such as Florida (FL ST J ADMIN Rule 2.420(d)(1)(B)(i)), Indiana (Ind. St. Admin. Rule
9
9(G)(1)(b)(iii)) and New Jersey (NJ R GEN APPLICATION Rule 1:38-3(d)(12) and
(15)).
The extent of financially sensitive information required by Pa.R.C.P. No.
1910.27(c) and 1920.33 that must be listed on income and expense statements, marital
property inventories and pre-trial statements rivals information contained in a financial
source document. Therefore, these documents should also be treated as confidential.
Vermont has a similar protocol (VT R PUB ACC CT REC § 6(b)(33) and 15 V.S.A. §
662).
Courts that permit e-filing should consider the development of a compliance
“checkbox” whereby e-filers could indicate their compliance with this policy.
This section only applies to documents filed with a court or custodian on or after
the effective date of this policy. There will be a period of transition prior to full
implementation of this policy; that is, some documents filed with a court or custodian
prior to the effective date of this policy will contain information that the policy restricts
from public access. To expect full and complete implementation of this policy by
applying it retroactively to those documents filed prior to the effective day of this policy
is impractical and burdensome.
However, it is important to remember with regard to pre-policy records, a party or
attorney always has the option to file a motion with the court to seal, in whole or part, a
document or file. This includes the ability to request sealing and/or redaction of only some
information that resides on a document in the court file (e.g., a social security number on a
document).
SECTION 9
This section safeguards certain sensitive information that is already protected by
existing authority or was deemed to require protection by the working group from access
at the court facility. The latter category included two specific types of records: birth
records and incapacity proceeding records.
Access to a birth certificate from the Department of Health, particularly an
amended birth certificate, such as in an adoption case, is limited pursuant to various
statutes. 35 P.S. §§ 450.603, 2915 and 2931. Unrestricted access to records filed in
proceedings about birth records could have the unintended effect of circumventing the
purposes of the confidentiality provisions of the above statutory framework. Moreover,
at least one jurisdiction, Florida (FL ST J ADMIN Rule 2.420(d)(1)(B)(vi)), provides
similar protections to these records. However, concerned that the lack of transparency
may erode the public’s trust and confidence, dockets and any court order, decree or
judgment in these cases are exempted by the policy. Releasing the dockets as well as any
order, decree or judgment disposing of the case is believed to strike the appropriate
balance between access to the court's decision, and hence the public's understanding of
the judicial function, and personal privacy.
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Given the extent of financial and sensitive information that is provided in order
that a court may determine whether a person is incapacitated and, if so, that must
subsequently be reported in a guardian's report, these records are not be accessible.
Similar provisions are found in many other jurisdictions including: California (Cal. Rules
of Court, Rule 2.503(c)(3)), Florida (F.S.A. §§ 744.1076 and 744.3701), Georgia (Ga.
Code Ann. § 29-9-18), Idaho (ID. R. Admin. Rule 32), Maryland (MD. Rules 16-1006),
New Jersey (NJ R GEN APPLICATION Rule 1:38-3(e)), New Mexico (NMRA Rule 1-
079(c)(7)), South Dakota (SDCL § 15-15A-7(3)(m)), Utah (UT R J Admin. Rule 4-
202.02(4)(L)(ii)), Washington (WA.R.Gen. Rule 22(e)) and Wyoming (WY R Gov
Access Ct Rule 6(g)). For the reasons of transparency, the case docket and any court
order, decree or judgment for these cases is exempted pursuant to this policy.
The provisions of Subsection G are consistent with those contained in the
Electronic Policy, MDC Paper Policy and Rule of Judicial Administration 509. The
Judiciary’s commitment to the principle of open and accessible case records is reflected
in the inclusion of a publication requirement.
SECTION 10
Any information to which access is limited pursuant to Sections 7, 8 or 9 is also
not accessible remotely pursuant to Subsection A(1). As to Subsections A(2) through
(A)(7), it is important to note that this information will remain available at the courthouse
or court facility where access has been traditionally afforded. There is a difference
between maintaining “public” records for viewing/copying at the courthouse and
“publishing” records on the Internet. Thus, there is certain information for which at the
present time courthouse access remains the appropriate forum.
Concerning Subsection A(2)'s restriction on remote access to information that
identifies jurors, witnesses, and victims in criminal cases, similar provision exist in the
Electronic Policy and have been implemented by other jurisdictions, including Alaska
(AK R ADMIN Rule 37.8(a)(1) and (2)), Indiana (Ind. St. Admin. Rule 9(G)(1)(e)),
Mississippi (Administrative Order dated August 27, 2008 paragraph 8), Nebraska (NE R
CT § 1-808(b)(3)), Texas (TX ST J ADMIN Rule 12.5(d)) and Utah (UT R J ADMIN
Rules 4-202.02(8)(e) and 4-202-03(7)).
As pertains to Subsection A(5), in considering family court records (i.e., divorce,
custody, and support), individual courts have implemented protocols to shield some of
these records from access. Sensitive to these concerns, prohibiting online posting of any
family court records (save for a docket, court orders and opinions), along with the
requirements that certain information and documents filed with the court or custodian be
restricted from access via the use of a Confidential Information Form, redacted filings or a
Confidential Document Form, removes a significant amount of the personal, sensitive
information from access, while allowing public access to ensure accountability and
transparency of the judicial system.
With regard to Subsection A(6), New Mexico has a similar protocol protecting
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Older Adult Protective Services Act matters (NMRA Rule 1-079(c)(4)). For the reasons
expressed above, remote access should be afforded to dockets, court orders and opinions
in these cases, to the extent that the judicial districts have developed systems and
procedures that facilitate such access.
While case records remotely accessible to the public prior to the effective date of
this policy may remain online in unredacted form, judicial districts are not prohibited
from taking steps to safeguard sensitive case records designated by this section. To
expect full and complete implementation of the policy by applying it retroactively to
records remotely accessible prior to the effective date of this policy is impractical and
burdensome.
However, it is important to remember with regard to pre-policy records, a party or
attorney always has the option to file a motion with the court to seal, in whole or part, a
document or file. This includes the ability to request sealing and/or redaction of only some
information that resides on a document in the court file (e.g., a social security number on a
document).
It is essential that courts and custodians in designing systems, such as those for
document imaging, e-filing, or both consider the requirements of this policy and ensure
such systems are in compliance. This is imperative as the Judiciary moves toward
statewide e-filing for all levels of courts.
As for systems currently in existence, the policy may require changes to current
protocols and processes.
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A similar provision is included in the Electronic Policy. This policy delineates a
procedure by which an individual may correct a clerical error that appears in a case
record accessible remotely. As noted in the Explanatory Report to the Electronic Policy,
these provisions borrow heavily from the correction provisions in the Criminal History
Record Information Act. For the same reasons outlined in the Explanatory Report, a
similar protocol was included in this policy.
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BEST PRACTICES
The following are various “best practices” that should be considered by the
courts, parties and their attorneys to promote the successful implementation of this
policy.
1. The Judiciary should remain cognizant of this policy in the development of e-
filing and case management systems, procedures and forms. The following
“best practices” should be considered as courts develop systems for e-filing:
a. Access to the courts should be promoted by the e-filing processes;
b. Court control over its own records should be preserved;
c. Systems should have consistent functionality, compatible protocols
and rules to facilitate statewide practice;
d. Processes for pro se litigants should be defined to provide equal and
secure access to the system;
e. Issues involving public access to e-documents, and the sensitive data
that may be contained therein, should be fully studied before the e-
filing system is developed (e.g., separate e-filing of exhibits from
other documents);
f. Payment of any required filing fees should be accomplished via
electronic methods;
g. Bi-directional exchange of data should be facilitated between e-filing
and case management systems; and
h. Maximum flexibility in the design of a system should be sought to
accommodate future evolutions of technology.
2. Compliance with this policy and the Judiciary's commitment to open records
may be assisted by various technological and administrative solutions, such
as:
a. Implementation of redaction and "optical character recognition"
software may assist parties and their attorneys in complying with the
policy. Some judicial districts also employ redaction software to
protect sensitive data as a “best practice.”
b. Due consideration and routine review by custodians should be given to
the standards for record retention as applied to those records in paper
form and electronic form.
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