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2000-2001 Comments Received

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Comments Received by the Administrative Office of the United States Courts in response to Request for Comment on Privacy and Public Access to Electronic Case Files.

Each comment has a number, date, and where provided, a geographical identifier. In cases where the comment was sent by an individual with no business or professional affiliation noted, the name of the commentor is not included.  In cases where the comment was sent by an individual in a professional capacity or on behalf of a group or organization, the name of the commentor and/or the name of the group is included.

The Administrative Office of the United States Courts reserves the right not to post a comment, or any part thereof, which contains irrelevant or scurrilous material.  Footnotes and endnotes attached to comments have been omitted.

Item

Date

From

Summary

# of Pages

1

11/08/00

Richard A.Berger

Associated Professional Services

Waterloo, NY

"All court records should be available to thepublic by all means possible at all times, with noexceptions."

1

2

11/10/00

JenniferL. Hathaway

Foremost Search and Recovery Co.

Camden, DE

Opposes initiative to shut down or restrict elec./pacerfiles; they are public records; understand right toprivacy, but court records are public.

1

3

11/11/00

Charles T.Pinck

President, Georgetown

Group

Public information (personal identifiers such asaddress, dob and ssn) is crucial to professionalinvestigators and the legal profession; currentlegislation  (Privacy and IdentityProtection Act; Identity Theft Protection Act) as wellas new FTC regs. (treating such info. as financial andthus protectable) are threatening.

(Legal Times, 10/30/00)

3

4

11/13/00

ArianeCiarlo

Claimsupport.com

Pompano Beach, FL 

Strongly protest efforts to close down federal courtdatabase access; lawyers and clients will have to pickup costs of this inefficiency; requests for commentslike this are the first step to narrowing access.    

2

5

11/13/00

JohnHealy

Litigation Intelligence Service

Warner, NH

Courts have always been open and accessible; recordsare used daily by legal, investigative, lawenforcement, and investigative communities; they have aright, and public needs to be able to observe thisprocess.

1

6

11/13/00

LandersService Co.

Private Investigations

Milton, MA

Lawyers and private investigators are licenced,responsible professionals; existing state laws varywidely, and can already severely inhibit legitimatebackground investigations; medical records are verydifficult to obtain under present circumstances.  

1

7

11/13/00

JohnFrank, Esq.

Lewis and Roca

Phoenix, AZ

Electronic public access will make it easier to obtainfinancial info for fraudulent purposes; obtain tradesecrets; and aid in identity theft, especially inbankruptcy cases.   

1

8

11/14/00

WilliamLosefsky

Goffstown, NH

(private investigator)  

Uses PACER on a daily basis for judgement collections.Without access to this and other public recorddatabases, these efforts are futile.

1

9

11/14/00

GuyParadee

IARS

Rutland, VT

(private investigator)

Collection of public info is essential to conductinginvestigations.  Certain types ofinfo. require restrictions.  It is clear that welack the info necessary to understand investigativeneeds, and what the info sought is used for.  

1

10

11/14/00

TeresaVila

Premier Invest. Svcs.

Fort Lauderdale, FL

Small business searches rely on internetdatabases.  Increased costs of in-person searches would beprohibitive.  We should go forward,not backward, with technological progress.     

1

11

11/14/00

Ted L. Moss

The Background Network, Inc.

 

There is a connection between private investigations and public safety; limiting public access will only increase costs and risks to public.  Security industry fills roles government cannot.  Dangers of release of personal information based upon fear of internet, the unknown.  Judicial process should be open to avoid government hiding its mistakes; to leave government in control of information could be. dangerous/oppressive.  Article attached entitled  "Freedom or Privacy"

5

12

11/14/00

Washington, DC

 

 

Level of privacy on-line should be the same as in court.  Case law should provide the answer.  Internet should provide greater and faster access to documents already public.  Standards of privacy do not change because of technology; technology must change to meet standards of privacy.  

1

13

11/14/00

Sanford Meltzer, Esq.

Keep current service.  We protect the rights of the people and the proposal would hamper our efforts in this age for instant  info.

1

14

11/14/00

 

Abilene, TX.

 

ECF would help limit travel and copying costs; would help in multiparty lawsuits if files could be downloaded and discovery, under appropriate protections, could be made accessible without duplication and mailing; care should be exercised to avoid publication of confidential information, which could be addressed in local rules and protective orders.

1

15

11/15/00

Joe Kolman, Reporter

Omaha World-Herald

Omaha, NE

What is public in paper files should also be public in electronic files; can understand fears re: personal data, but attorneys, members of court, and research entities should have unlimited access, excluding use for commercial purposes; believes such provisions exist in some federal info laws. 

1

16

11/15/00

Richard Wilstatter

White Plains, N.Y.

Criminal Defense Attorney

Objects to proposed restrictions to PACER for criminal cases.  Access is crucial for those with cases in remote districts.  Parties can move to seal records if that is necessary.  Defense needs access to balance power of state, and avoid the additional expense of hiring investigators.

1

17

11/15/00

Lexington, KY

Hard copy public documents should be treated the same as internet documents.  Sensitive materials in these documents should be sealed at party request while main document remains part of the public record.

1

18

11/15/00

Rebecca Lynn Woodward

Moyer and Bergman

Palo, IA

Legal Assistant

State court info. is  not readily available.  Federal court sites provide easy access.   Case info available to us makes our jobs easier, and services less expensive for clients.

1

19

11/15/00

 

Newtonville, MA

 

The original intent of our founders was a free and open government, particularly the courts; restrictions on access to court info is a form of obstruction and overt disregard for founders intent.  Courts should promote free and open access.

1

20

11/15/00

 Detroit, MI.

Federal Court Employee

Favors option 2 for criminal cases, keeping certain materials out of public eye.  In our court, very little of the named documents are in public files; judiciary should ban ssn use on civil documents.  

1

21

11/16/00

 Coeur d'Alene, IA

 

It is a basic right of people to access the courts; medical information should remain private. Any info. that is public in court should be public on the internet.  

1

22

11/16/00

Julie Titone

The Spokesman Review

Coeur d'Alene, IA

Staff Writer

Supports continuation of, and enhancement of public access to court records and full awareness of judicial actions.  Only minor, non-significant deletions to protect privacy- such as shortening of ssn or credit card numbers- should be considered.    

1

23

11/17/00

 Columbia, MO

Fully supports on-line access to records and dockets of the federal court system.  The current PACER system is antiquated and does not serve the needs of the general public.

1

24

11/17/00

 San Anselmo, CA

"Any sensitive personal information should be blocked out ("xxxxx"), all else in transcript should be made public on the internet."

1

25

11/17/00

Norman Meyer

Fairfax, Va.

Clerk of Court,

U.S. District Court

E.D.-VA

(Personal views; not those of court)

Public access should be restricted where privacy interest outweighs need for openness.  Sensitive personal info should be restricted to keep pre-defined data confidential. Renewed scrutiny necessary by litigants and judges to seal material on a case-by -case basis. Allow full access only to parties/litigants.  The same restrictions are necessary on access for paper and electronic records.  This will be difficult for records custodians to implement.    

1

26

11/19/00

 Milwaukee, WI.

If court cases are open to the public, they should also have access to those records.   Milwaukee allows open access to its court records (cites personal protection, business uses).  Leaving the public in the dark about  info. available in court records leaves them in avoidable danger.  

2

27

11/20/00

 Kent, WA.

Electronic records should only be reviewable at the courthouse, not across the internet.

1

28

11/20/00

Renton, WA.

Current records access constrained by court hours, viewing procedures, identity checks, provision of copies only, cost of service.  Unlimited internet access would eliminate these few privacy safeguards.  If we move to open access, need system for monitoring, charges for service, and read-only copies to deter fraud.  

1

29

11/20/00

Jim Sweeney

James M. Sweeney and Associates

(Pvt. Investigations) 

Legitimate searches are invaluable in protection of companies/individuals.  There are documents (tax, medical) that should remain private.  Courts are just in deciding access questions. He prefers  option that treats paper and electronic access equally, but restricts or presumptively seals sensitive information from public view.  Sufficient access is necessary to gain understanding of court case and decision- this requires ssn or dob provision by inquirer (software that can grant access sufficient for review, and positive or negative response from system).  In this way, courts do not have to release dob or ssn.

2

30

11/21/00

Norway, ME.

Proposals are fair, but in criminal cases, personal info. on defendants and their families must be shielded to avoid possible retaliation

1

31

11/21/00

San Francisco, CA. 

Data provides useful academic/edu. info on causes of bankruptcy available no where else.  Ssn and addresses could be blocked with no sacrifice of benefits to scholars or process.  

1

32

11/22/00

 Beaumont, TX.

Court files should be available on the same basis and cost either in the courthouse or on the internet and should be free in either place.  Provision of this service is a government, not a private function. 

1

33

11/22/00

 Cheyenne, WY.

Access to public records should not be limited to those with time, money and/or physical ability; documents containing sensitive info. should be sealed, with burden on filer to insure records are safe for public consumption.

1

34

11/22/00

 Gary, IN

Public info. should be listed on the internet.  We can do away with paper and cut staff.

1

35

11/22/00

 Seattle, WA.

If it is a public record, then I believe it should be as easily accessible via internet.

1

36

11/23/00

 Mineola, N.Y.

Please do not eliminate electronic access to criminal cases; doing so will represent an abridgement of the free access to public information.

1

37

11/23/00

Kent Morlan, Esq.

Tulsa, OK

Internet Publisher

Commentor collects and publishes info. on civil cases, judges, lawyers, etc.   Access to public records and internet should be free to all.  Most of public do not have access to federal court records due to fees.  Most lawyers are unaware or do not use PACER.  Judicial info. should be easier rather than harder to get and calendars and dockets should be free and available to all.       

1

38

11/24/00

Thomas Lincoln

San Juan, PR

Criminal Defense Attorney

Do not provide electronic public access to criminal case files because there is  less of a legitimate need regarding them.  Public need is outweighed by safety and security concerns (e.g., harassment of defendants/families; jeopardizing defendant cooperation; hampering law enforcement and prosecution efforts).  Reasons counsel might request for sealing of information may be obvious in some cases (e.g., pleas; sentencing issues; etc.), not in others.  The benefit of the doubt should be given to counsel.  On limited public access option, objections and concerns the same. 

2

39

11/24/00

 Chehalis, WA.

Internet access to court documents and cases is the best thing to happen to the American public; it is necessary for a person to be fully informed.

1

40

11/24/00

Andrew U. D. Straw, Esq.

Bloomington, IN.

Civil: support maximum public access, with increased penalties for misuse of data, and no charges;

Criminal: understands law enforcement reasons for wanting to keep certain documents public, but all documents that a judge does not have a compelling reason to seal should be open, including plea agreements, so that taxpayers can evaluate judge and prosecutor conduct.

Personal info. on bankruptcy and other civil (e.g., ssn; credit card numbers) should be excised or virtually sealed, but not whole documents.  Courts should not be cajoled into a mode of secrecy simply due to risk of privacy invasion. Persons whose rights are at risk need to take initiative to protect them. Courts should not backpedal on commitments to openness due to new technologies.    

2

41

11/24/00

 Katy,  TX.

Mechanisms, rules and law already exist to protect litigants, trade secrets, sensitive and other info. deemed private by motion to seal, etc. Default policy should always be resolved in favor of openness.  By its nature, litigation process exposes records to public view, which should not be limited only to those who can get to courthouse.  All court records, save only those recognized by law as appropriate for seal, should be available on-liNEThe AO should not be in a position to make new law and policy to seal records for the 99.9% of public who can't go to courthouse.  Full access benefits administration of justice and legal system as a whole.

2

42

11/25/00

 

In Toysmart case customer lists generated by this company were available for sale in bankruptcy proceedings.  This is a blatant invasion of privacy/possible identity theft.  Government is allowing anyone with money to access private info.  Customers of the bankrupt should not be punished.

1

43

11/26/00

Alexandria, VA.

 

Personal data (ssn; credit info.; address; photographs; etc.) should be blacked out from all paper or electronic record copies to protect privacy and avoid identity theft. 

1

44

11/26/00

 Seattle, WA.

 

Unsealed electronic court files should be treated the same as unsealed court files; all should be available for copying/downloading.  

1

45

11/27/00

 

Public access is necessary and required in an information based economy; internet access of court records is required to ensure public and corporate security.

1

46

11/27/00

Alan Schroeder

Costa Mesa, CA.

Law Librarian

Support full and open access to all court records, either print or electronic.  The  transient nature of info. technologies makes print version of court filings imperative until a reliable electronic standard is created and agreed upon.  Courts should be servants of the people, not research/ development entities for third party commercial on-line service providers without general system benefits obtained through licensing agreements; lawful use of these records has continued for decades under numerous laws on the books.  The AO needs to manage this new technology effectively.    

1

47

11/27/00

 

Privacy policy should be confined to courthouse access only.  Going to courthouse to obtain info. is not onerous and weeds out undedicated.

1

48

11/27/00

 Linden, IN.

All court records should be available over the internet- easier, and a lot less work; if the courthouse had more flexible hours, it might be different. 

1

49

11/27/00

Cordova, TN.

 

Would be very concerned if patient medical records became public via the internet (e.g., litigant who has been exposed to HIV).  This is very troubling legislation. 

1

50

11/27/00

 

Birmingham, AL.

Internet opens this type of data to unwarranted view; please keep access limited as at present.

1

51

11/28/00

 Rennsalaer, IN.

Computer filing is ok, but viewing of all public documents should be restricted to the courthouse only; courts should protect non-court personal info. due to current abuses.  The  potential for abuse is greater than any benefit.   

1

52

11/28/00

 

Electronic access is inevitable.   Privacy is important, but access should be equal whether you can make it to the courthouse or not.  

1

53

11/28/00

 Alpharetta, GA.

Immediacy of access should have no bearing on dissemination of materials that are public documents.  Some proposals treads on 1st Amendment.  You should encourage the widest dissemination possible.

1

54

11/28/00

 Clyde Hill, WA.

Civil cases: prefer a blend of options 1 and 2, with sensitive info. sealed on application of counsel.  Sealed info. could then be available on application for disclosure, stating reason or purpose (except commercial).  Violations should be subject to sanctions

Criminal cases: maintain status quo (no disclosure)

Bankruptcy cases: open and available (for electronic or paper files), using guidelines of Sec. 107.   

1

55

11/29/00

 Chicago, IL

Concerned about the erosion of privacy; court records should be protected from unrestricted and widespread public view; of the options presented:

Civil files:

option 1 does not adequately protect; unauthorized third parties would still be able to access;

option 2 allows protection, but at cost of more work of the courts, attorneys, and litigants; also a lack of clear standards could lead to litigation; better than nothing but not ideal;

option 3 is flawed to the extent that parties have no choice if not voluntary, and may be victims of dissemination of info from a weak or frivolous case;

option 4 privacy and security interests should be key part of court records management;

Criminal cases:

option 1 provides the greatest protection and best insures the efficacy of criminal justice process;

option 2 may not provide sufficient protection;

Bankruptcy cases:

option 1 provides needed reform to assure protection of sensitive info.;

option 2 may not provide debtors all the info. needed to assure the full and meaningful enforcement of debtors' rights;

option 3 should be adopted as a minimum, although greater protection is preferable;

option 4 may provide sufficient protection, but a better approach would be to assure protection unless legitimate need proven after application; but better approach would be to assure protection unless legitimate need proven after applying; balancing test of info. sought and reason for request compared to info. sought to be  protected, and reason to protect info.; similar to deliberative process surrounding privilege issues at the federal level;

Appellate cases:

option 1 should be adopt across the board rule for all federal courts;

option 2 does not promise uniformity; favor option 1. 

11

56

11/29/00

 Chesapeake, VA.

Fire walls and IP address controls achieve benefits and control risks of data access.  Electronic data access should require similar levels of cost and effort to paper.  A registration process and subscription fees are parts of a possible approach, allowing some traceability of accessors; some responsibility should lie with the person posting; rules and search engines should require open and free access to electronic and paper documents.    

2

57

11/29/00

 Lyman,  S.C.

Anonymity is the problem with unrestricted access- a cloak of invisibility; cost would prohibit the search for violators.  The same restrictions should govern internet access to personal info. as govern in person access; technology must exist to leave a "cookie" behind those searching data.   

1

58

11/29/00

 Prescott, AZ

If you can get info. directly by photocopy, you should be able to get the same info. via the internet.

1

59

11/29/00

Stanley D. Helsinki, Esq..

Boston, MA

 

A document is either public or private- no shades of gray.  The standard should be the same standard as is applied in allowing cameras into courtrooms.

1

60

11/29/00

 Los Angeles, CA

Keep court records of all types from electronic access.  The current system (paper access) addresses concerns by requiring interaction with gatekeepers in courthouse, limiting access to ssns, personal contact info., employment, and financial info.  Please respect the privacy of those who place their trust in the U.S. justice system.   

1

61

11/29/00

Peter Nikitas

State Bar of Wisconsin

 

One should analyze individual privacy data differently from corporate data.  Starting with individual data, one may see great harm in disclosure of medical records and ssns.  Statutes prohibit unauthorized ssn disclosure and disclosure of worker's medical information beyond strictly circumscribed exceptions, whether or not the worker is disabled. We should oppose broad disclosure of individual private data by federal courts, and any effort to condition suit on waiver of privacy rights, support efforts to provide openeyed, Mirandalike warnings to federal court litigants of the use of the data they file in court.

1

62

11/29/00

J C. Desmond

Savannah. Ga.

Career Law Clerk

An open government is a healthy government.  When private parties

use the judicial branch to resolve disputes they make "private" papers public documents.  Unlimited access to public court records also advances "citational accountability [of judges]."   Without unfettered access to court documents, "judicial legislation" and judicial politicking would be more difficult to detect.  Commentator favors the following proposals:

Civil case files no. 1 (place burden on litigants to partially or fully seal records, but promulgate a national rule hence, option 4 allowing partial (e.g., last fourdigit) tax  and credit card (etc.) numbers, but keep exception narrowly defined; options 2 and 3 NO!- don't nickel and dime people skip the 7 cents/page access charge;  provide open government, not another layer of wasteful bureaucracy; 

Criminal case files: option 2 makes sense and is well worded;

Bankruptcy case files: illumination of debtor data assists those who'd otherwise detect and illuminate fraud;

Appellate cases: support options 1 and 2 and finds them wellworded;

2

 

 

 

Criminal case files: option 2 makes sense and is well worded;

bankruptcy case files: bankruptcy has lost its stigma, and is abused by many; illumination of debtor data assists those detecting fraud;

Appellate Cases: supports options 1 and 2 and find them wellworded.

 

63

11/30/00

 Healdsurg, CA.

Civil case files: establish "levels of access" to certain electronic case file info.;

Criminal case files: provide limited electronic public access to criminal case files;

Bankruptcy case files: restrict use of ssn, credit card, and other account numbers to last four digits to protect privacy and security; segregate certain sensitive information on separate forms that will be protected from unlimited access and available only to the courts, Trustee, and to parties;

Appellate Cases: treat any document that is sealed or

subject to access restrictions at the trial court level with the same protections at the appellate level.

1

64

11/30/00

 

Anything normally protected under existing laws should be protected if found in a case file.  It is also essential to our court system to be able to research and examine rulings.  Thus, information relating directly to  charges, verdicts, legal and logical basis behind verdicts should be publicly available.  There is  no problem with using the internet to disseminate the public access portions of case files.

1

65

11/30/00

 Walnut Creek, CA.

All public court records should be available on liNEIf they are available without charge locally, they should be without charge electronically.  Consistent standards should govern protected info in paper and electronic records.  Perhaps info should not be on-line until conclusion of the case, as this would allow parties time to request the sealing of certain info. 

1

66

11/30/00

 Santa Rosa, CA.

Contents of civil should be completely available- necessary for a variety of research purposes.  Criminal records should be restricted for privacy reasons, and stripped of sensitive i.d. data before publication; better to err on side of privacy.  

1

67

11/30/00

 Vidalia, GA.

Records of trials are public and should be on-line; if court deems matters confidential, limited access for approved purposes only. 

1

68

12/1/00

 Binghamton, N.Y.

 

Government should not promote user-friendly access to this subset of the public record.  Age of electronic commerce promote misuse of data.  Make people go to the files.

1

69

12/1/00

 La Verne, CA.

No one should have access to personal or financial info. without a court order. 

1

70

12/1/00

 

Paper and electronic records should be treated the same. 

1

71

12/1/00

 Milwaukee, WI

Support full and open exposure of all case files, with penalties for misuse.

1

72

12/1/00

 San Francisco, CA.

Electronic records provide a technical ability for abuse of  masses of persons.  Limit the number of records a person or corporation has access to over time.  This is only a partial solution.

1

73

12/1/00

 

As court documents contain names, addresses, ssns., bank account numbers, they pose a grave identity theft risk- caution is therefore in order.  Until biological identifiers are possible, the internet poses risks from both here and abroad.  

1

74

12/1/00

 Palo Alto, CA.

Due to the private data contained in these files, they should be sealed. The only exceptions should be where pubic health and safety are at risk, like with criminal records.

1

75

12/1/00

 Boulder Creek, CA

Experience on jury duty, and laxity of care with regard to juror personal data, convinces me that judges should be subject to liability in tort for data security in their courts.

1

76

12/1/00

 Plano, TX.

Records need to be open, but downloads should be limited to prevent mass compilations and cross-referencing; also, IP addresses should be given to facilitate criminal abuse investigations. 

1

77

12/1/00

San Jose, CA.  

Electronic dissemination of court records should be limited to avoid large scale harm to large numbers of people.

1

78

12/1/00

 San Angelo, TX.

Allowing full access to all on the internet empowers those without  access; it should be embraced  wholeheartedly by the government.

1

79

12/1/00

Brian Lee Corber, Esq.

Panorama City, CA.

Court filings are public record in the absence of court order. They should be accessible via the internet in order to  save time and  money and to increases efficiency.  It will also  make people more comfortable with their system of justice.

1

80

12/1/00

 Lancaster, CA.    

Civil and criminal records should be available to the public, but personal information should be removed.  Business related files should be treated differently, and the info. removed from any file should be available upon court order.

1

81

12/1/00

 Nashua, NH

Paper and electronic records should be treated the same.  The law should help people, and restricting info. does not help, and could harm.

1

82

12/1/00

Manassas, VA.

Electronic records of case files should not be publicly available. Currently corporations maintain huge data bases on the public into which they will now absorb court case data. Data available in court data bases will promote new kinds of discrimination.  Keep these records available to court and law enforcement only.   

1

83

12/1/00

Menlo Park, CA.

Do not allow web-publishing of even those records that are public. Organizing and cross-referencing capabilities of the web, with no legal or ethical constraints, will eliminate personal privacy. 

1

84

12/1/00

 Toronto, Ontario

(U.S. citizen)

Best to create a subclass of public information (i.e., make ssns non-transmissible information).  Monetary barriers alone will simply foreclose options to individuals, not to corporations or governments.

1

85

12/1/00

 Durham, N.C.

It is alarming that the most private form of info., the ssn, is available on the internet.  This information must be kept off. 

1

86

12/1/00

Virginia S. Meehan

Plant City, FL.

Commentor opposes electronic court records access.  Medical, financial, tax and other records must remain personal.  The internet/court system will mark everyone for life who has ever failed.  The doors to the thievery of  all other kinds of personal info. will be opened.  

1

87

12/1/00

 Duvall LA.

All public records should be available over the internet, but personal info. should be extracted.  This should apply to paper court records as well.

1

88

12/1/00

 Mobile, AL.

Alabama court electronic data is very convenient for law offices and paralegals.  It saves time and money for the legal community and courts.

1

89

12/2/00

 

Port Orange, FL.

Full disclosure is vital for safeguarding rights, but can be trumped by certain issues such as privacy.   Commentor suggests a three tier system of public (all general proceedings) protected (information that could contribute to illegal discrimination, such as sexual orientation, medical history, etc.); and secure (personal i.d. info.).  Each classification could be fitted with access controls appropriate for that classification. 

2

90

12/2/00

 Gainesville, FL.

Public access to activities of govt. are predicated on need for public scrutiny; degree of disclosure should be governed by degree of government involvement.  In criminal cases, unless on-going investigation, all info should be public.  In civil cases, unless government is a party, limited info. should be available, excluding personal info. unless directly related to final ruling.    

2

91

12/2/00

 Sunnyvale, CA. 

Certain aspects of public records can be kept confidential through the use of software that extracts personal info. prior to uploading on the internet.  Salary listings in bankruptcy cases is particularly egregious. 

1

92

12/2/00

 Southbury, CT.

It is better to censor personal info but that may open a pandora's box of enforcement problems.  Err in favor of full disclosure on principle.  You  might consider recording who has obtained access, or monetary restrictions. 

1

93

12/2/00

Ownsboro, KY

Some info. in court-related files is too sensitive for general or electronic release.  Identity theft is too great a problem, and the potential liability is too great to assume. 

1

94

12/2/00

 Menlo Park, CA

Arguments for not providing full access to criminal case files are not compelling, and may diminish the rights of defendants.  Legitimate concerns do arise over mining of automated data, although it is important as a research tool.  Consider open info. in cases with final determination of guilt, with other defendants offered opportunity to seal records. 

1

95

12/3/00

 Los Angeles, CA. 

Do not prevent the average user form accessing the information if criminals can get it just as easily by other means (access to DMV records that are also available without submission of justification on internet); Consider requiring a form be filed with each pleading containing all necessary personal i.d. info., with original in paper file, and redacted copy scanned into electronic records system. This is not long term solution, however which will require laws changing the way we retain such info.

2

96

12/4/00

 Laconia, N.H.       

Court records dealing with financial info. should not be online; infringes on right to privacy, and opens door to financial mayhem. 

1

97

12/4/00

 

No secret testimony should ever be allowed in a court case.  All pro se case files should be on the net for public education purposes.

4

98

12/4/00

Zachary Mosner

Ass't Attny. General

State of Washington

Bankruptcy and Collections Unit

RACER and PACER have made equal access to justice a reality; with e-documents there is no longer a jurisdictional edge- it establishes a level playing field.   As the technology advances, it will be possible to identify abuses and address them (does not reflect the official opinion of his office). 

1

99

12/4/00

 Virginia Beach, VA   

Allow internet access to court cases; amend current laws to restrict info. to personal information.

1

100

12/5/00

Long Beach, CA

Charge a fee to identify those gaining and using info for later enforcement action for misuse.  Personal data should be omitted or encrypted.  

1

101

12/5/00

 Orange, CA.

There should not be general public access to entire criminal files.  Parties names should appear however, to facilitate searches.  Limits on the number of documents that may be retrieved [at any one time] would also deter "info. harvesters."  

1

102

12/7/00

 Bethesda, MD.

Courthouse paper records naturally restrict and control access- electronic info. takes on a life of its own.  Consider giving each type of court case its own level of access protection and limiting case info. to summary files, requiring access to details on basis of password or in person visits.  

1

103

12/07/00

 Norwood, MA

Policies should be consistent between paper and electronic records, but internet does create opportunities for abuse.  It is  reasonable to offer on-line index of cases/dockets, while sealing [personal] contents; authenticated identity of person seeking info. should be known, and details of the request [request history] posted with case.   

1

104

12/8/00

West Virginia

We should use the technology available to glean the info. we can from case files.  The public has a right to know, unless it is restricted or not in the best interests of the people/parties involved.

1

105

12/8/00

 Seattle, WA.

Interested person can attend court or go through minimal procedures to gain access.  Most clients have minimal experience with the law, and participate openly due to the belief that the material provided will not be widely disseminated.  Open electronic court files will engender this; it will also encourage others to file scurrilous materials without  fear of liability for defamation; the public should come to the records- not the records to the public. 

1

106

12/9/00

 Eau Claire, WI.

Absent special circumstances, all open cases should be available on the internet.  Once closed, a case should be removed so those involved can get on with their lives.  This balances need to monitor public events with litigant's rights. 

1

107

12/10/00

 

In criminal matters, everything should be available and indexed unless a specific reason prevents it.  In civil cases, subpoenaed info. should be withheld, including all involuntary testimony.

1

108

12/10/00

 Portland, OR

Electronic files should be treated the same as paper; if parties wish to protect sensitive info., they should move to seal.  The decision to charge for access to electronic records is absurd and should be promptly reversed.

1

109

12/11/00

 San Francisco, CA.

Court documents should be available on the internet. 

1

110

12/11/00

Toni Imfeld, Esq.

Linville, and Clausen

Seattle, WA.

"Civil: option 2; there needs to be access to most, but not all, documents via electronic means, and uniform rules protecting privacy would be the most effective means to do this;

Criminal: option 2; many items in criminal files are not public information now, and should remain that way;

Bankruptcy: option 4; the easiest way to segregate the private information is to collect them and restrict access; it would then be up to the parties and their attorneys to be sure that information did not make it's way into a public file;

Appellate: option 2; electronic access to court files is an important development, which will greatly reduce the cost to litigants; courts should consider the matter of privacy, unless and until Congress can act in the matter.

1

111

12/11/00

 Salt Lake City, UT. 

The public's business should be accessible to the public on the web.  Private becomes public through government action.  The public, as taxpayers, should not have to pay for access.

1

112

12/11/00

Howard M. Unger

c/o Sarasota Herald Tribune

Bradenton, FL

Electronic files should be treated the same as paper, as there is  no legal difference.  As a journalist, commentor is concerned with the timeliness of document postings.

1

113

12/11/00

 Needham, MA

The advantage of immediate access is arguable. There remains a difference in making documents available at the courthouse versus the internet, and the security through the obscurity the former provides.  The danger to privacy rights and the threat of criminal  misuse of data remains, and is accentuated by internet access.  It may result in fewer people being willing to use their courts out of fear.  

2

114

12/12/00

 Orange CT.

Although in the public domain, the ease of internet access to records over 17 years old could cause massive loss of privacy; idea of levels of access will only encourage violations of the policy; finally, if available, it should be free for everyoNE

1

115

12/12/00

John T. Longino, Esq

Limiting public access is an idea worthy of Washington- only allowing the elites (local judges, lawyers) to know what is going on.

1

116

12/12/00

John Q. Public

There is no reason for distinction between paper and electronic records access.  If  ssn and bank account info. availability are hazardous, they should not be available.  The right to personal privacy should not be sacrificed. 

1

 

 

117

12/12/00

 

New York, N.Y.

Posting documents on the internet should be a time and money saver for everyone.

1

118

12/13/00

Samual Blanchard, Esq.

Los Angeles, CA

Commentor is a PACER user.  All public documents should be scanned and on-liNEEmphasis should be on active cases, but also last 5-15 years.  Commentor  prefers web-based dial-ins, pdf formats and  wants increased access. 

1

119

12/13/00

 Memphis, TN

FRCP should be changed so that parties are not routinely required to file any info. until then the harm of allowing free public access to sensitive info. is greater than the public good of allowing such access.  Sensitive info. should be accessible only by those in need-parties, attorneys, and the court; chances for mischief too great.

1

120

12/13/00

 Schenectady, N.Y.

Public proceedings and the records that flow from them are an essential part of republican govt..  All records before the courts should be available.  Secrecy is an anathema to our type of govt. 

1

121

12/13/00

Winston Ross

The Idaho Spokesman-Review

reporter 

Public records,  no matter what form, should remain open.  If its public, it should not matter who has access or how often. 

1

122

12/14/00

 Sloughhouse, CA.

 

Electronic access to bankruptcy court records saves time, reduces costs to public, and makes legal services more affordable.

1

123

12/15/00

 Elgin, TX.

Access to electronic records should be completely open, and not just to those who know how to find the "back door" to desired data.  Secrets do more harm than the truth.

1

124

12/15/00

 San Francisco, CA  

I would like to keep court documents accessible.

1

125

12/18/00

Bernard Cane

Santa Monica, CA.

licensed private  investigator

Public record access is the fundamental basis for the freedom we all enjoy; closing access would invite a flood of fraud and deception.  No further steps are necessary if access is limited to registered, qualified users for legitimate purposes.  

1

126

12/22/00

Bogolusa, LA

Ability to find any legal information should be encouraged as one more tool that the uneducated and poor can look to defend themselves from injustice.

1

127

12/22/00

 New York, N.Y.  

In some cases, public offices release information only to those presenting identification.  We need secure measures to allow for remote identification.  NSA should develop a single federal id/password schema

1

128

12/22/00

Ira Hoffman

Grayson & Kubli

McLean, VA.

attorney     

Commentor strongly supports expanding electronic access to court files to the same extent that paper files are available.  Electronic access to existing files would have to be read only, and impregnable fire-walls would have to be constructed against hackers. 

2

129

12/28/00

 

Government records should always be open unless they affect the defense or vital interests of the U.S.

1

130

12/29/00

Richmond, VA.

Currently, civil court records and post conviction criminal court records are accessible by anyone for any or no reason.  Access is not used because it is administratively difficult.  Attorneys and bar associations see access to the courts as an economic threat.  In  metropolitan areas, court personnel, under perceived pressure from the bar, are not helpful to citizens who want access to court processes.  In state courts, judges are often, although not unanimously, hostile to pro se litigants. Electronic access makes possible inexpensive and easy academic and citizen review of the court process; inexpensive and easy resource access for the potential pro se litigant; less costly administration for the private bar and government agencies; and greater opportunities for commercial exploitation of public record information.

2

131

12/31/00

Lynn M. Evans

Executive Director

Mississippi Center for Freedom of Information

Jackson, MS.  

The Center is organized to protect peoples right to know the actions of its government.  Electronic filings in federal court should be open and accessible.  Access represents long- standing rule of common law,    protects public at large as well as parties in litigation, and insures equality before the law.  Restrictions on access erodes the watch dog role that open access provides.   Mississippi law now requires that all records, including electronic ones, are governed by the Public Records Act The Center favors of open public access to all electronic filings of the court.          

2

132

1/1/01

 Port Clinton, OH

Commentor approves of electronic access to court records, so long as process of justice is not encumbered and is pleased  that all court records in election controversy were readily accessible.  

1

133

1/2/01

Warren D. Matson

Milwaukee, WI.

Pastor 

Interested in greater availability of court records.  As an employer working with children, access allows more complete background checks of employees.

1

134

1/2/01

 Dousman, WI.

Court system should obtain only that info. necessary to its role.  The  entire record of the court is public, and should be available to the broadest audience by all technological means.  Courts should not discriminate as to access based on geographical proximity. 

1

135

1/2/01

 Grand Marsh, WI.

The public has a right to view all public records, including criminal records. 

1

136

1/2/01

 Fairfield, CA

There is no substantive difference between access to hard versus electronic files.  Any party with a valid legal reason may seal records in either system.  Advantages of wider, more direct electronic access are party ability to review to determine accuracy; savings to clerk's office in time, space and personnel costs.     

1

137

1/3/01

Shannon O'Bien

U.S. Bankruptcy Court

Spokane, WA.

Debtor name, address and other info. should be sufficient for identification purposes.  Commentor supports limiting ssn, credit card, other data to last four digits. 

1

138

1/3/01

 San Jose, CA.

The magnitude of what judiciary is attempting leaves doubt as to whether it can be managed effectively and in a timely fashion.  It is better to make all prior judicial decisions that are precedential electronically available to the public, rather than just active new cases.

1

139

1/03/01

Rolla, MO

Civil case files: option four, seek an amendment to the FRCP to deal with privacy concerns; specifically, any financial information that could be used for "identity theft" or fraud  purposes; also, any information that could be used to harass a defendant or plaintiff, such as medical information or insurancerelated information;

Criminal case files: not necessary to provide in electronic form; need for using the electronic system is space saving due to the voluminous documentation involved, and because these cases do not generally create such large files, it does not seem that this is necessary; further, these records contain information and pertain to matters which are highly sensitive and personal;

Bankruptcy case files: a combination of options one,

three & four would be necessary to prevent fraud and "identity theft" by those who would use electronic access to gain sensitive financial information contained in these files; they would still allow the case parties, as well as others such as financial institutions access to the information as permitted by statute;

Appellate cases: either option would suffice to protect privacy while allowing sufficient access to the public;

PACER and CM/ECF Systems are invaluable tools for the public;    believe that good government is government that operates in the open; in the electronic age to have these records easily available, but with secure logins for record keeping and tracing is idea whose time has come.

2

140

1/4/01

John Wiltsee

Assoc. Gen. Counsel

Univ. of Nebraska

Lincoln, NE.

Alternative policy models two and three are preferable to alternative oNE

1

141

1/4/01

Rose L. Thrush

U.S. Bankruptcy Court

Portland, OR.

 

Bankruptcy case files: proposal 1-to work, it would have to be in combination with proposal 4; proposal 2-not sure anything could be omitted; proposal 3-credit card and account numbers could be reduced to the last 4 digits, but ssn should [not] be as it is; used to track and identify serial filers and those who have been prohibited by court order from refilling; proposal 4-in conjunction with proposal 1 would seem to be the best solution; but, do we have the technology that would allow access to parties in interest which changes with each case?

1

142

1/4/01

 Cincinnati, OH.

 

You  need to secure info. that is available on the internet and to protect privacy of all citizens.  Only basic info. such a party names, case numbers and dates should be available.  Outside inquirers should have case numbers for court database inquiries.

1

143

1/5/01

 Harrisburg, PA

Limited electronic access to criminal case files should be permitted, but safety and security concerns should be met with regard to plea agreements, unexecuted warrants, etc..

1

144

1/5/01

 Phoenix, AZ

Access via internet not equivalent to in-person access.  The potential harm of internet access far outweighs ease of access for the legitimately interested few.  The identification of a file and its status may be all that is appropriate.

1

145

1/5/01

 

Case files should be protected from public disclosure as all contain private or sensitive info.  The disclosure of medical records, personnel files, tax returns, proprietary info., motor vehicle info., police records, etc., should be on a need to know basis.  When people feel the truth will threaten their livelihoods, they will not tell the truth.. This action holds the potential for a slew of lawsuits.  Why is this not a question for a public vote?          

1

146

1/07/00

 Chattanooga, TN 

Make criminal records available on the internet.  Criminals are always trying cover their past activities to take advantage of their next victims.

1

147

1/8/01

 El Centro, CA.

Commentor is concerned about personal info on the internet.  Identity theft is growing, and the current controls are elementary with no verification of those seeking access.  Legislation should penalize unauthorized use of this info.  The image of the courts will be harmed as criminals confess that it was through court data sites that their crimes began.

1

148

1/08/01

 Waukesha, WI

Commentor favors full access to paper file, limited electronic access, shielded ssn's.  She has had experience with identity theft.  Witnesses and litigants should be protected.    

1

149

1/8/01

Carolyn Elefant, Esq.

Washington, D.C.

Commentor is an attorney with small firm for whom internet access is vital.  There is a  need to strike a balance between privacy of litigants and attorney access.  Paid access to brief banks/other commercial services erodes equal opportunity of access and  free access to officers of the court is better.  Commentor  agrees on need to amend the FRCP to reflect privacy rights and protect sensitive info. Attorneys' access to important work product info should also be protected against commercial re-packagers/re-sellers of such info. (attached partial web article: "How Much Privacy Do Litigants Deserve in E-Filing?" by author )

3

150

1/11/01

 Sevierville, TN 

All bankruptcies should be a matter of public record on the internet as   such postings can only increase efficiency. Commentor does not understand privacy concerns.

1

151

1/12/01

Eddy L. McClain

Director, Past Pres.

National Council of Investigation and Security Services

NCISS is a national org., with members in 40 states; recognizes traditions and legal basis of open access to public records; remain concerned about privacy in internet records access.  There is a difference between paper records in the courthouse and electronic  records and internet access.  Improved technology requires improved controls.  NCISS opposes  restrictions to access on unsealed records, but requirement of identity at the courthouse (practical obscurity) remains more secure than anonymous access over the net.

Amendments to the FRCP are  not needed at this time-the few aberrations should not outweigh the normal daily info. flow;

Civil case files: court discretion in sealing records sufficient- against any two-file (public/private) solution as too restrictive, subjective and costly; but requestors should have to register and qualify for access for case by case access, and foreign access should be prohibited to avoid intellectual property theft;

Criminal files: no danger to treat these the same as civil, with protections for witness and family  info.; PACER-type registration will provide protection, but access necessary for safe workplaces; Bankruptcy case files: full disclosure is necessary, and privacy has been waived by filers to get relief; society has a right to the info., not only for parties to the current action, but also for all creditors and others who must make judgements regarding dealings with the filer in the future; the positive identification of the filer is also important, and requires a ssn to insure that others with similar names are not injured thru mis-identification or confusion; data should not be reduced, but increased- suggest dob on case files and docket info.;

Appellate cases: same as above, with full access to anything not sealed;

Strongly oppose bulk records sales; oppose elimination of hard copies of records due to potential of internet sabotage from hackers (on the increase)- keep as necessary backup.

4

152

1/12/01

Andrew Oh-Wileke

Rumler Law Corp.

Denver, CO.

Commentor favors: (1) presumption that all filed documents not sealed are available at the courthouse and electronically; (2) extending  presumption  to criminal case files, where the sixth amendment gives public access to criminal case files; (3) not modifying  Rule 107 of the Bankruptcy Code to reflect a movement to electronic records access; (4) Restricting use of personal numbers to the last four digits is appropriate in all contexts, not just electronic ones, unless the entire number is for some reason "at issue"; (5) Consistency with these rules at the appellate level is appropriate.  Different standards for paper v. electronic records is not sensible.  Nothing in public record is ever really private; i.e., credit reporting, legal publishing, and title abstract industries; illegitimate users who have a financial interest in misusing paper records will not be inhibited by a paper record standard; way to protect privacy is by keeping certain information out of all public records.

2

153

1/15/01

Erik Bakke, Esq.

Davis, and Arneil

Wenatchee, WA.

 

Commentor applauds the courts for web-RACER.  Court files are public and  web access just makes access more convenient.  If limits on access are necessary, they should not apply to attorneys who need info and are officers of the court.  Perhaps user access should be only through pass words and defined levels of access, but limiting access to what is already public makes no sense.

1

154

1/15/01

Paul S. Snyder, Esq.

Ashland, KY

Electronic access will have significant implications re: privacy, but free access is critical in a democracy; info. may be segregated for cause in paper and electronic records with party consent.. The   judiciary must avoid possibility of electronic "star chamber" by eliminating disclosure requirements for private info. and maintaining free access for appropriate parts of public record. 

1

155

1/16/01

 Everett, WA

Public records access should be the same for paper and electronic records and the internet removes barriers/restrictions of space and time.  It should be welcomed.    

1

156

1/16/01

Mississippi Press Assn.

Jackson, MS

 

 

There is no  reason that court files on-line should be treated differently than existing records.  Federal and state decisions support need for openness.  A new medium should not distract us from core values.  Internet access is more convenient and less costly.  Privacy objections raise no new controversies.  Nothing has changed except the technology.     

2

157

1/17/01

Charles A. Schaffer, Dir.

Small Business Assistance Office,

Minnesota Dept. of Trade and Economic Development 

Business bankruptcy files are of interest to states in addressing job loss and directing economic assistance

Civil files - Restricting access would prevent state from securing accurate, timely info. with which  to inform state residents and shape good state policy; favor alt 1: only option that maintains judicial discretion to seal files at litigant's request if privacy concerns threaten right to access- this has worked well;. alts. 2 and 3 have troubling elements; hard to see how concept of "public case file" could be uniformly applicable; concept of differing levels of access erects further barriers; best course is extension of current open access policies to electronic files.             

3

158

1/17/01

Toby Brown

V.P., Strategic Initiatives

iLumin Corp.

Courts should revise policies to protect private info.  Citizens should be able to use their courts without fear of  info being published on the net. Use of PDF formats makes this harder.  Courts should use XML  (now developing standards for court operation).  XML allows easier redaction, and "portioning" of documents.  

1

159

1/17/01

Richard J. Byrd

Byrd Mische, P.C.

10521 Judicial Dr.

Fairfax, Va.

Commentor is a practicing attorney and  member of Virginia's Electronic Filing Committee, for which Fairfax Co. is pilot.  He has  drafted legislation excluding divorce cases from net access through sealing, although they can still view in the clerk's office.  Federal cases involve much sensitive info., including info. on children.  It is seemingly universal opinion among practitioners in Virginia that court files should be sealed from electronic access. Availability at courthouse satisfies access and open government concerns. 

2

160

1/17/01

Anne Gardner, AUSA

E.D. Arkansas

Little Rock, Ar.

She is working on similar issues with  state, local,  tribal governments, NACM, COSCA, Justice, and National Criminal Justice Assn. (views are her own, not that of her office);

Info. must be considered by type and context.  Systems must see each document as a whole, and public access policy  must be integral to system design to account for the nuances of this data.  Policy must reflect new  access, sharing, and analysis capabilities- all agencies must become pro-active. For these reasons: criminal case files proposal (section 1) is unrealistic; civil case files proposal display that difficulty is determining what info is public;  levels of access concept implies info is not truly public except to those with authorization- if so, better to term it disclosable or confidential.    

2

161

1/18/01

Anonymous Attorney

Commentor is against allowing pleadings, transcripts, motions or other  matters to be readily available to the public in this manner and  supports redefining the what should be public record matters.  He is concerned with ramifications re: ABA code of conduct concerning confidentiality of client info. and secrets attorneys may be allowed to release without client consent.  Allowing the release of such info would harm the profession as well as the public.  Clients may choose against bringing suit, against being forthright with counsel, or going pro se; open access thru the internet creates climate for manipulation by parties- can also lead to blackmail, more cases withdrawn, more requests for redaction and sealing. There must be standards for what is public.  Redaction and seal solutions will create workload burdens on court staff.  You need pro-active posture and should consult Nixon case re: public v. private. It used to be that open access was best policy; not anymore- now requires investment to protect public, data, software, systems.  There are more tort suits coming on data access/misuse and  parties opting for arbitration to preserve privacy.

3

162

1/18/01

 Richmond, VA.

Commentor deeply concerned with allowing public access to court records with personal info over the net and  possible misuse by stalkers, harassers, etc.  Bankruptcy and criminal cases should be available, but sensitive identifying info. should be removed.  It's the responsibility of the government to protect people's privacy.   

1

163

1/18/01

 Englewood Cliffs, N.J.

There is a right to access, but some kind of tracking and user certifications should be required.  It would be an added benefit for those whose info  is accessed to have access to that same info, and name of requestor.

1

164

1/18/01

 Chicago, IL.

    

Criminal case files: do not provide electronic access- can see no benefit, and possibilities for misuse of data;

Civil case files: all documents that are not sealed are available at the courthouse or electronically; in reference to closed cases, included or excluded from the new policy? recommend that it apply only to new cases; "levels of access" concept- as a computer professional, skeptical -difficult to enforce, subject to hacking, and does not protect against second readers who obtain copies. 

1

165

1/19/01

Charlotte Hardnett, Acting General Counsel Social Security Administration;

Arthur Fried

Fmr. General Counsel

Social Security Administration

(Extensive comments-please see full text)

Social Security Administration believes that Federal court records in Social Security cases should not be made available to the public at

large through the use of the internet.    Social Security Administration policy is not to disclose personal information pursuant to a Federal or State court order or other legal process unless the  disclosure is permitted by the Social Security Act  42 U.S.C. §1306(a); participation in Social Security programs is mandatory, and people cannot limit what information is given to the Social Security Administration; thus, completely open access to Social Security litigation case files would likely have a chilling effect on seeking judicial review  of administrative decisions on Social Security  claims; any  such chilling effect would be in tension with the congressional intent  to furnish Social Security claimants the right to  judicial review  42 U.S.C. § 405(g)-(h); a claimant's  right to such review necessarily outweighs any general public interest in universal, instantaneous electronic access to a claimant's personally identifiable info.; 

 

A civil case record generally includes the pleadings, the parties' briefs on the merits of the Social Security claim, the administrative record, the court decision, and large amounts of personally identifiable info.:

Alt 1: maintain the presumption that all filed documents that are not sealed are available both at the courthouse and electronically [....].:

     

Social Security Administration does not consider sealing records on a case by case basis as a viable method for addressing privacy and

security of Social Security claimants; potential harms outweigh the benefits of general public in internet access; first, virtually every Social Security case file contains sensitive information; second, due the pervasiveness of personally identifiable information in Social Security court case files and the large volume of Social Security civil litigation, this policy alternative would be extremely burdensome for the courts and the parties; third, we know of no legal authority for sealing Social Security court records at the courthouse; fourth, a single, nationwide approach is necessary to help ensure uniform treatment of Social Security  claimants and consistent handling of their records and could lead Congress to amend the Social Security Act with respect to protecting claimants' privacy and security interests uniformly;

  

alt. 2.: define what documents should be included in the  "public file" and, thereby, available ...either at the courthouse or electronically [...];    since this policy alternative links the public file in the courthouse and on the Internet, the Social Security Administration does not view this as a workable alternative for the same reasons;

    

alt 3.:  Establish "levels of access" to certain electronic case file information [....];

if internet access to Social Security court case files were restricted to judicial personnel and parties to the litigation, the Social Security

Administration would favor this alternative; it is noted, however, that filing paper copies of the administrative record portion of the Social Security court case record is the best currently available alternative;.  currently, scanning is the only way to electronically file these record  and it is of limited value for several reasons...[it would] require the considerable additional funding...; does not produce word-searchable texts...; [and the ] inevitable inaccuracies would require additional funding.... ; finally, failure to rely on accurate records would lead to

erroneous court decisions;

    

alt. 4.: seek an amendment to one or more of the Federal Rules of Civil Procedure to account for privacy and security interests;  

Social Security Administration would be amenable to employing this approach; we would want to participate in the development of any such amendments;         

 

Criminal Case Files

alt. 1.: do not provide electronic public access to criminal case files....

No comment.

    

alt. 2.:  Provide limited electronic public access to criminal case files.... allow the general public access to some, but not all, documents routinely contained in criminal files....;

Social Security Administration is concerned about any personally identifiable information, especially Social Security numbers, that would be made available to the public...;

    

Bankruptcy Case Files

alt. I.: seek an amendment to  section 107 of the Bankruptcy  Code;   section 107 currently  requires public access to all material filed with

bankruptcy courts and gives judges limited sealing authority; 

for the reasons previously stated, we believe that personally identifiable  information, and Social Security numbers in particular, should not be included on internet postings of bankruptcy case filings;

alt. 2.: require less information on petitions or schedules and statements filed in bankruptcy cases; 

for the reasons previously stated, we believe that personally identifiable information, and Social Security numbers in particular, should not be included on internet postings of bankruptcy case filings;    

alt. 3.: restrict use of Social Security, credit card, and other account

numbers to only the last four digits to protect privacy

and security interests;

Social Security Administration concurs;

alt. 4.: segregate certain sensitive information from the public file by collecting it on separate forms that will be protected from unlimited public access and made available only to the courts, the U.S. Trustee, and to parties in interest;

Social Security Administration has no objection.

         

Appellate Cases

alt. 1.: apply the same access rules to appellate courts that

apply at the trial court level;

Social Security Administration concurs;

alt. 2.; treat any document that is sealed or subject to public access restrictions at the trial court level with the same protections at the

appellate level unless and until a party challenges the restriction in the appellate court;

any document that is sealed or subject to public access restrictions at the trial court level should enjoy the same protections at the appellate level, until a court of competent jurisdiction unseals the documents or revises the access restrictions.

14

166

1/19/01

 Seattle, WA 

Internet access to court case gives the potential for access to personal info, especially in regard to stalking or domestic violence victims and for identity theft.

1

167

1/20/01

Harry Hammit

Editor/Publisher

Access Reports

Lynchburg, VA.

It is a dangerous precedent for the court to respond to privacy alarms with policy prohibiting access due to potential invasions of personal privacy.  As a society we have not conducted the necessary debate as to what info. in traditional public records should be public.  General access to public records is a statutory right, not an added benefit, and is in no way tempered by what records reveal.  Court records are not necessarily public at creation, but only when they enter the public record.  Parties are in best position to decide, but should not be given cart blanche.  Redaction should be based upon and objective standard, not subjectively perceived embarrassment to the parties.  The  court should analyze public interest and outside parties the opportunity to argue for disclosure.  The goal should be to maximize the amount of info. that can be made available.  Public oversight over the courts is essential and should not be given short shrift due to personal privacy concerns.

3

168

1/21/01

Kirk T. Hartley

Butler, Rubin, Saltarelli, & Boyd

Chicago, IL.  

Commentor has seen few cases in 17 years of law practice where truly private info made its way into court files; if sensitive, judges can seal; not sure re: bankruptcy (fears of disclosure of credit and account info are probably right) but concerns there should not inhibit access to other court files.   

2

169

1/21/01

Jeff Hatch-Miller

Arizona House of Rep.

Phoenix, AZ

Few controls exist over publication of  info.  We should affirm a basic right that except in specific circumstances, doing business with the government does not require one to become a public personality and that certain info. (e.g., ssn; bank records; regular and e-mail address; regular and fax numbers; tax returns; wage stubs; medical info.; etc.)  will be held confidential.  Protection should not vary by record type. Data fields containing protected info. may be encrypted, and available only to identified, verified subscribers in single case inquiries (no bulk requests), and offer only incomplete identifiers in those protected data categories (e.g., first 5 ssn digits; zip codes in place of complete addresses; range of dates in place of one dob; etc.).

2

170

1/22/01

 Greenfield, WI

Commentor is very much opposed to the courts giving out info on the web as it can get into the wrong hands.

1

171

1/22/01

 Waukesha, WI

Internet use is similar to broadcasting- care must be taken re: sensitive information.  Consider excluding all access to sensitive info in paper or electronic records.  Unless it is pertinent to the case,  it should not be a required part of it.  Procedures are required to shut down access on court order.   

1

172

1/22/01

Joseph S. Pomykala

Towson State Univ.

Dept. of Economics

8000 York Rd.

Towson, MD      

Primary concern is bankruptcy case files;

re: Alt. 1(seek amendment to Rule 107...):

public access concept would be weakened thru restriction to "parties in interest;" all case documents should be accessible unless sealed, and judges should have narrow authority to seal;

re: Alt. 2 (require less info. on petitions, pleadings, ...) :

more versus less info. should be required, as Congress has recognized in recent bills (e.g.,  check off for debt amount should include actual indebtedness);

re: Alt. 3 (restrict use of significant identity numbers to last four digits...:

clearly justified- entire number should perhaps be struck;

re: Alt. 4 (collect sensitive info. on separate forms...)

may  be unwarranted, and unwise to create a separate info. source to be withheld from the public; in general, all case documents should be accessible, unless sealed by a judge or law; sensitive i.d. info. should be excluded; narrow judicial authority/discretion to seal; the law should specifically reflect only that info. that is required.           

4

173

1/23/01

 Seattle, WA  

Net access would surely affect the privacy and safety of individuals.  There is no need to make personal ident. info. readily available.   Private and sensitive info. in court records poses a threat to victims. Commercial info. venders facilitate the discriminatory  uses of this data. Access to the courts should not subject the public to increased danger or embarrassment.    

2

174

1/23/01

 

Lawyers don't want the public to know anything without paying them first.

1

175   

1/23/01

 Grass Valley, IA

Full electronic disclosure will create an assembly of documentation that contains detailed info. about criminal or personal activity.  This info. is dangerous in the hands of the wrong people, and its presence would make the host web site unacceptable for many viewers.  Don't [unwittingly] create a manual on criminal or illegal business practices.

1

176

1/23/01

An American

  I am aware that there are other ways to obtain personal info., but unaware that it was so easy for people to take otherwise private moments and offer them to the world.  I don't think the founders would have approved. 

1

177

1/23/01

 Charlotte, N.C. 

The degree of excellence in performance always improves with observation.  There is a long line of stories of misbehavior or reckless performance by officers of the courts.  The public needs access to all documents, proceedings, and the names of all attorneys involved in them. 

2

178

1/24/01

 Sandown, N.H. 

I do not feel that court documents should be public info. on the net and available to all.  Too many who view them would not have the competence to understand their meaning, and would be a source of public harm.

1

179

1/24/01

Brian Long

National Group President

Dolan Media Company

obo

Amer. Bankers Assoc.

850 Third Ave. S.

suite 1650

Minneapolis, MN.

The  ABA is committed to open access to court records in paper or electronic form and  recognizes  the need to balance privacy concerns, but ease of access should have no bearing on to whom access is given. Any changes in access should occur only after careful consideration. Financial institutions need access to protect against fraud.

The  ABA supports open access through PACER or other account based, web-based password protected systems;

Re: privacy and security implications, there are legitimate concerns raised that can be addressed through the sealing of portions of these files by court order, recognizing, however that info. on individuals filing for bankruptcy should be widely available, and that access by creditors is necessary for the efficient operation of the bankruptcy system;

Re: policy alternatives on electronic public access:

ABA prefers that it remain the responsibility of parties in interest to move to protect their interests by motions to seal, and notes that current law already penalizes those who abuse personal info.;

Re: criminal cases:

there should be no distinctions between paper and electronic files; judicial oversight and power to seal provide sufficient protections for privacy concerns (see attached appendices).     

4

180

1/24/01

 Lemont, IL. 

These court records should not be on the net.  This info. should  stay in the courthouse, on paper, to protect individual privacy and prevent fraudulent abuse and the threat of identity theft.  

1

181

1/24/01

Mark Bernsley, Esq.

15910 Ventura Blvd.

Encino, Ca.  

Access should be based on details, not documents- all documents should be available, not all details.  The purpose of public access focuses on courts and judicial process, not litigants. There should be 2 levels of access based on involvement, not medium.   Courts and parties require documents and details, policy  should be the same with paper or electronic files.  Templates exist for developing and implementing policy, process and procedures: see Rev. Proc. 2000-1, 2000-1 .4 of IRS (procedures re: original and redacted document versions; only redacted version is public)

General principles/procedures: parties may file original and redacted versions.  Any party served may submit a revised copy to redact, or further redact info.  Courts could adopt rules or standing orders covering routine redactions/matters; special rules re: transcripts could provide for written submissions where necessary.  Motions to make info. public could be filed at any time by anyone, forcing the court to weigh privacy against public interest in disclosure.        

8

182

1/25/01

 

The first concern of courts should be justice.  Electronic access limits justice. Victims are less likely to confront attackers and  witnesses are less likely to cooperate with police.  The 1st amendment does not cover access to all documents (e.g., medical records).  Court records should be available only to those able to use them to further justice. 

1

183

1/25/01

Craig M. Husa,

Senior Vice President  Courtlink Corp.  

Courtlink is a leading provider of electronic public access to court records; open access is better than restricted access.  The public has many legitimate needs for access to court records, expressed through info.  demands of law enforcement, private investigators, insurance companies, title insurers, financial institutions,  insurance companies, the media, security firms, tenant and employment screening companies.

Courts are inadequately staffed to respond to all info. requests Access levels differ between state and federal courts., but commercial providers bridge gaps.

4

184

1/25/01

 Mercer Island, WA 

Please keep web site open- essential for good policy, enhancing public understanding and trust in the process. 

1

185

1/25/01

Ethel Zelenske

NOSSCR Govt. Affairs  Office

Washington, D.C.

National Organization of Social Security Claimants Representatives (NOSSCR) is an org. of attorneys and non-attorneys representing claimants for SSI benefits; concerned re: electronic access to extensive personal ID info. contained in SS files; favor alt. 3, establishing levels of access to court files; exposure of personal ID info. could have a chilling effect on claimants willingness to pursue claims; agrees with Social Security Administration concerns, and favor use of s standing protective order covering SS cases; further:

 

Civil case files:

favor alt. 3, establishing levels of access, and restricting access via identity of person seeking access, nature of the document, or both; do not seek change in current policies re: paper files at courthouses;   

Criminal case files:

favor alt. 2,  limiting access to parties, counsel, and the court; personal info. re victims and SS claims should not be available  on the net;

Bankruptcy case files:

favor alts. 1, 2, or 3, insuring that personal info. should not  be posted on the net;

Appellate case files:

trial access rules should apply.         

3

186

1/25/01

Jodie Z Bernstein

Dir., Bureau of Consumer Protection

Federal Trade Comm.

600 Penn. Ave.

Washington, D.C.     

Submitting prior comments offered to the Depts. of  Justice, Treasury,  and Office of Mgmt. and Budget (the Study Agencies) for their study of privacy  issues in consumer bankruptcy  filings; net info. has transformed the concept of public access, posing both benefits and risks to consumers re: privacy; FTC has established,  under the Federal Identity Theft and Assumption Deterrence Act of 1998 a centralized repository for claimants and victim assistance; key pieces of info. for identity theft are the ssn and dob, both contained in bankruptcy  filings;

 

Privacy and identity  theft re: bankruptcy:

study agencies should consider crafting policy  whether certain personal identity data is required to be in the public record, and  whether tailored restrictions on such data are appropriate;

consider noticing requirements to debtors re: how info. will be collected and used, extent to which made public;

 

Future practices re: collection, analysis and dissemination of personal data: potential commercial use of such data should be prohibited;

9

 

 

 

trustees in bankruptcy  owe a fiduciary duty to the debtors estate;

any use of such data for any purpose other than admin. of debtor's estate should require prior notice and approval from debtor;

interplay of the bankruptcy code and efforts to protect consumer privacy  merit further analysis.   

 

187

1/25/01

J. Michael de Janes

ChoicePoint, Inc.

100 Alderman Dr.

Alpharetta, Ga.  

Court records contain info. that is used by business, individuals, and government  for a wide range of socially beneficial purposes.  Courts should continue traditional access while restricting it as necessary where need is compelling and clear.  Continued public access is important for greater good of society; without certain i.d. info., can't match persons to data, so can't guard against identity theft and fraud; ChoicePoint identification and research products are subject to important privacy protections under state and federal laws, and self- regulatory and internal policy protections; also insures that subscribers are reasonably identified, meet qualifications as appropriate users, and agree to terms and conditions of access; ask that any policy proposals that would restrict access to court files be rejected.    

7

188

1/25/01

Terry Francke

Gen. Counsel

Ca. First Amendment Coalition

Sacramento, CA   

Civil Case Files:

favor Proposal 1, (...all files not sealed will be available both at the court house and electronically...);

find impracticable proposal 2 (...define what document should be included in the "public file"...) which amounts to a shrinkage of the  accessible paper record, presumes what is necessary for an understanding of the underlying case, and assumes that the range of public and private info. don't overlap;

proposal 3 (...establishing "levels of access' to certain electronic case info. ) is also unsatisfactory, as it provides no on-line cue as to what is available, does not address how case files would be indexed or searchable, and does not address fee issues;

proposal 4 (...seek an amendment to one or more of the Federal Rules of Civil Procedure...) is unclear- if its seeks to reduce the range of info., objections are necessary- if it sets procedures for dealing with sealing,  ok as long as they do not merely codify zones of privacy irrespective of case particulars;

 

Criminal Case Files:

proposal 1 (...do not provide electronic public access to criminal files...)  is unacceptable-the total preclusion of remote access to criminal files is inconsistent with the traditional presumption of public access to the criminal justice system noted previously;

favor proposal 2 (...provide limited electronic public access to criminal case files ...), but trust exclusions are time-limited;

 

Bankruptcy Case Files:

all 4 proposals have some merit, but would recommend the following amendments (in caps):

proposal 1 (...seek amendment to section 107 of the Bankruptcy Code)

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1) specifying that only "parties in interest" may obtain remote ON-LINE access to certain types of information;  2) ... provide protection from REMOTE ON-LINE disclosures based on FACTUALLY SUPPORTED AND CLEARLY ARTICULATED privacy and security concerns; 3); 4) ...protected from public access and made available ON-LINE only to the courts ...;

 

Appellate Cases

urge proposal 2, if it means that access restricted at the trial court level could be challenged at the appellate level.      

 

189

1/25/01

Judge James Starzynski

U.S. Bankruptcy Court

Albuquerque, N.M.

Some of the proposals currently being considered would have  an enormous impact on the court's case management system.  Remedies decreed without court input could be a disaster. 

1

190

1/25/01

  San Antonio, TX

There must be a balance cast between competing rights of access and privacy.  One solution would be to create classifications of information/documents that would be protected in the electronic database (e..g, a "class A" document requiring the highest protection  might be shielded or screened depending on who is requesting access) Lawyers would be required to obtain a password based on their bar number, while others would utilize some other kind of identification.

1

191

1/25/01

R. Daniel Lyons, Esq.

 

Downers Grove, IL  

All files not sealed should  be open to the public at the courthouse and electronically without fee.  Judicial documents kept in secret, and judicial censoring of public info. is a very  bad precedent to set. 

1

192

1/26/01

Margaret Gay

U.S. Bankruptcy Court

Albuquerque, N.M.    

Federal courts in New Mexico have been providing case info. to the public through the internet since 1995, including pdf images of the documents themselves.  Electronic access to court documents saves dollars and man-hours, In six years the court has never received a complaint about publication of these records on the net, and believes the benefits outweigh the costs.  It is imperative that the Judicial Conference formulate policy on this issue with the courts who can assess the practical effect of policy determinations.  After reviewing the policy options proposed, we believe that they can have serious unintended consequences on court operations and should be carefully reviewed to insure that they are locally feasible.  We suggest:

ssns: efforts to curb the publication of these numbers is futile- they are too widespread, and too necessary to identification;

segregation of sensitive info.: such proposals would significantly increase processing time in every case;

levels of access: introduce multiple levels of complexity and put clerks on the line to make decisions re: public info.   

2

193

1/26/01

New York Times Co.

Legal Dept.

New York, N.Y.

Electronic access to court records has solved many of the problems and limitations relating to paper records.  We view the restrictions suggested within the proposals outlined as unwise, unwarranted and constitutionally suspect.  If info.  exists in court files that should be withheld from public scrutiny, adequate measures exist through sealing, although that standard is difficult to meet; what seems impermissible s a matter of  fairness and constitutional law, is either of two kinds of discrimination discussed in the proposals: by document type (paper v. electronic), oar status of seeker.  It should be borne in mind that any regulation aimed at electronic files may amount to regulation over all files, as paper records may disappear  in our lifetimes.  If there is to be court intervention in any event, a case by case approach to every aspect of these is issues warranted.  We submit that current law as practiced is adequate, and that current rules can apply to files in the clerks office or on a computer.       

4

194

1/26/01

Alice N. Lucan, Esq.

Washington, D.C.

Commentor represents the Daily News of Memphis, a legal notice publication whose business basis is legal, employment/tenant screening companies, law enforcement, etc., whose use of data is limited by statute.  Use of data in this manner is a public service.  We endorse the comments submitted by the National Newspaper Association and the Reporters' Committee for Freedom of the Press. 

2

195

1/26/01

Bruce R. Hulme

Assoc. of  Licensed Detectives of New York

New York, N.Y.   

The association (ALDONYS) opposes restrictions on public access for both civil and criminal files other than those sealed by the court, although recognizing that the electronic medium may warrant some restrictions; with Pacer-type systems requiring identification of the requestor and establishment of an on-line account, consideration  should be given to attorneys, para legals and licensed investigators- as part of justice administration , they should be given considerations that are not provided to the general public. 

2

196

1/26/01

Laura R. Handman

Chr., Media Law Comm.

Arts Entertainment and Sports Section,

D.C. Bar

Washington, D.C. 

The Media Law Committee endorses the continuation of the judiciary's present case-by-case courts approach to sealing files; we also wish to emphasize our commitment to maintaining transparency in our judicial system, identifying 3 key issues:

Legal considerations: presumption exists in favor of access to judicial records; any policy choices curtailing wholesale access to records would raise serious questions

Public policy  considerations:

open records serve to educate the citizenry on our system of  justice and the basis of judicial actions; limiting access based on mode or means of storage or status of the seeker would be impractical and without sound foundation;

Journalistic considerations:

media organizations rely on court records as source material for news; better access assures better accuracy.    

3

197

1/26/01

Rene P Milam

Asst. Gen. Counsel

Newspaper Assoc. of  America

(Extensive comments-please see full text)

The NAA represents  over 2000 newspapers, and over 87% of daily U.S. circulation.  They  believe net technology should fulfil broad rights of public access, not as a rationale for scaling rights back. Courts should maintain their current case by case approach to sealing court files; no additional protection are required at this time.

 

Importance of public access, remote access to court record:

public/press learn substance of proceedings and operations of judicial system; journalists are eyes of the public in daily coverage, in-depth reporting (citing numerous stories, in various categories, aided by access, remote access and PACER access to court records);

 

Existing court practices are adequate to protect privacy interests:

(citing case law) bulk of info. available Does not raise privacy concerns; litigants can request court to seal; those who take advantage of  bankruptcy protection have no reasonable expectation of privacy; case by case approach to sealing,  requiring presence of a compelling interest in order to shield records from public view, is best approach; currently no reason to believe this approach is not adequate; allowing electronic access burdens no one, as its simple and automatic; would result in dissemination of no info. that is not already public;

 

Policy Alternatives: judiciary should re-creates same access regime for electronic as now exists for paper records;

alt. 2, creating limited "public' files is a profound step backward;

also oppose alt. 3 (limited or no remote access to electronic files but full courthouse access to both electronic and paper files)-no reason to impose blanket limitations on access, or limit across the board (rather than case by case) access; concerns re: criminal cases can be dealt with on a case-by-case basis;

 

Electronic access should complement rather than mitigate the important interests that are served by openness; when competing interests of privacy and access are weighed, judiciary should adhere to same well-reasoned access policy that obtains for paper records;  urge public hearings if departures from longstanding access policies are  contemplated.

16

198

1/26/01

Michael Giordano

Special Projects Dir.

CARCO Group Inc.

St. James, N.Y.

CARCO provides fraud deterrence/detection services, employment screening, and auto fraud inspections; produces over 2 million reports annually, and conducts over 30,000 federal public records inspections;

 

Electronic access to court case files:

public access through PACER adequate; should be available to authorized users without restrictions; on-line system  should contain all identifiers available on paper files to facilitate matching;

 

Potential privacy and security implications:

new technology may present opportunity for adverse impacts on balance between rights and privacy, but safeguards can be implemented; e.g., access restricted  to those entities registered with the records repository; requiring info. on the purpose of the search; using dial-up system rather than the internet; require 28 bit encryption for browsers; add subscriptions/fidelity bond requirements for access; provide criminal and civil sanctions for violations;

Role of the judiciary:

medium of record storage should not effect the presumption of access; believe current methods of protection via protective orders or sealing orders are sufficient for on-line and paper access purposes;

 

Policy alternatives:

Civil case files- support option 1, all document not sealed are available electronically or on paper ;

Criminal case files- do not support option 1, closing electronic access to criminal files; option 2 is a reasonable alternative where complete access deemed counter to needs of the majority providing electronic access to some of the documents in criminal files;

Bankruptcy case file- do not support any restrictions on access to info. in bankruptcy files; do support BR 107 as written;

Appellate cases- apply same access rules as at trial level.            

7

199

1/26/01

Total Info. Services Inc. (TISI)

Tulsa, Ok. 

TISI divisions are DAC; USMA; & RSI-separate comments from each:

TISI on Criminal case files: concerned re: blanket prohibitions which would harm the legitimate user and the general public; security measures should be adopted which would prevent improper access and institute penalties for abuse; need fastest most convenient, efficient method of access, which is electronic case file access;

DAC Services: provides background checks on job applicants; require timely, accurate info. to avoid liability for negligent hiring; require access to criminal records to screen divers for movement across Canadian Border, and for general public safety purposes;

USMA: provide background employment checks for retailers; require access to protect retailers from theft and protect public safety ;

RIS: employment background checks for aviation and banking industries; same concerns as above  (attached FAA regulations).  

9

200

1/26/01

Sharon Nelson, Esq.

Sensei Enterprises, Inc.

Fairfax, Va  

Competing interests of privacy and access must be balanced- necessary  to look at pros and cons of access restriction:

Redaction: personal info. may be redacted but who would perform? work hour and liability issues; burden, labor intensive, and software in different applications for systemic redaction not fully reliable;

Sealing: simple, economical, reliable - but how and what?

by kind of case-identify  by cover sheet; system can seal;

by document- requires electronic holding area until status of document can be decided; requests to seal will undoubtedly skyrocket;

Charging for access: this will limit access, but by economic discrimination; worse on pro ses, disabled;

Logging access: programming can temporarily stop data miners, but they can devise end runs around such restrictions; unwieldily on courts if they have to perform verifications;

Restricting access: problematic; if to parties and counsel, effectively seals all documents from public access;

For discrete number of records: data miners will find or program ways around such restrictions- if exceptions for cause, human intervention necessary, and time consuming ;

By kind of document: technically possible, but will effectively seal many records, and not offer privacy protection for others;

By area of  law: same limitations as sealing approach above;

By motion of party: wide disparity of results; sealing requests become automatic;

Recommend systematic sealing of  documents in areas of the law where privacy rights outweigh public access rights.  

6

 

201

1/26/01

Mary J. Obee

Chief Deputy Clerk

U.S.  Bankruptcy Court

Oklahoma City, OK 

Judiciary has four areas of interest in providing access to info.:

operational, for ease of case administration; to increase trust in system; to maintain and enhance compliance with the laws; and to allow the public to evaluate the operations and efficiency of the laws and the judiciary; while electronic documents take up less space, the equipment and programs necessary to create, store and view them are costly to initiate and maintain; further if access is easy, more access occurs- better for case administration in some ways, also creates more necessity for responses and hearings;

Privacy and security implications:

increased possibilities of physical, psychological harms, thefts of money and identity, ans loss of privacy; while low risk for individuals, high risk that data base will be used to initiate such harms and risks; security concerns with electronic  access over the net are great; differentiated levels of access to records could provide a workable solution;

Identification of alternative modes and means of access:

mode of access can be thru dia-up or internet;

alternative access policies are no access, limited access differentiated access by status, time, etc.;

Judiciary policy proposals:

not sure they are other than unlimited public access upon presentation of a password/logon and payment  of a fee; it will be costly and difficult to design and implement a usable unlimited access system; fees will help defray costs; judiciary should make rules for access consistent across all courts (system usage charts and graphs attached). 

10

202

1/26/01

 Princeton, N.J. 

(comments pertain only to civil cases)

Possible chilling effect of putting all records on line:

only about 15% suits go to trial-remainder of fillings contain untested facts; if disseminated, they could undermine the perception of fairness and trust in the legal system (analogizes impacts to first health records on the internet); when public loses control over info. about themselves, they change behavior in ways that may be harmful to society; two possible effects: amplification and mosaic; both hold deleterious potential;

Judiciary should not rely on outdated analytical models:

old models of public versus private, or balancing of interests approaches- both are outdated;

Limit the info. that can be sold:

court records are a mother-load of commercial value; West, Gann, others already profiting; "litigants do not give up their privacy rights simply because they have walked, voluntarily or involuntarily through the courthouse door'-Arthur Miller, 105 Harvard L. Rev.427 *(1991);   The federal Privacy Study Commission (1977) long ago saw the dangers of the erosion of individual liberties through automation as the result of many small, innocuous, incremental steps; urges the judiciary to limit access to sensitive information in court files.         

5

203

1/26/01

Lewis Bellardo

National Archives and Records Administration

College Park, MD. 

All policy alternatives seem valid and workable from a records management perspective.  He suggests that a time be specified for vacating the seals on materials included as part of  the case files that are scheduled for permanent retention.

1

204

1/26/01

Richard Gard

Amer. Court and Commercial Newspapers

Atlanta, GA   

We urge the courts to preserve the openness, availability and completeness of public records no matter what  the medium of storage.  Much of the info. in the federal courts has already been available for some time; do not in the name of unstated fears, start down the slope of redaction , closure and secrecy; avoid blanket policies and punish wrongdoers with the civil, criminal and regulatory tools available.  The credit and finance industries rely on the free flow of accurate and complete info..  It is also necessary to allow the monitoring of the administration of justice.    

3

205

1/26/01

Privacy Foundation

Denver, CO 

The Foundation recommends a national commission conduct a comprehensive study to determine access and privacy issues.  Comments were in 3 general info. categories:

confidential (juvenile; trade secrets, etc.); sensitive but not confidential (ssn, credit card numbers, bank accounts, etc.); with all others generally available on-line; commission should determine what falls into each, as well as impacts of technology on categories; commission would explore technological solutions for automatic redactions and the creation of a symbol system to guide filers and users.    

2

206

1/26/01

Chicago Bar Assoc.

Bankruptcy and Reorganization Comm.

Chicago, IL

Access to  far-flung districts is a necessity, and significantly reduces costs.  Open access to public records represents the ideal in the relationship between the courts and the public.  Debtors must disclose much private, personal and financial info. to gain relief- this info. can also facilitate the illegal or improper.  Monitoring access on-line is harder to do- registration is one solution, but difficult to verify; internet definitely accentuates existing concerns; exceptions to sec. 107(a) may not adequately protect debtors, or alleviate the "chilling" effect the risks of exposure  impose;

Creditors access cannot be restricted: aids in detection of fraud; access to this info. reduces the cost of goods and credit in general.  Internet access and bankruptcy practitioners: can provide clients with betters service.  It promotes equality of access for attorneys.  

Major issues/solutions: disclosure of risk of net exposure must be explained to clients; the Conference should conduct inquiries as to extent disclosure takes place; onus of informing clients is on counsel; Conference should conduct study re: costs to both debtors and creditors of not providing a full ssn on petitions.      

7

207

1/26/01

Senny Boone

National Newspaper Assoc.

General Counsel

Arlington, VA 

NNA represents community newspapers, and  recognizes concerns over privacy.  It is concerned that proposals seek to curtail access rights on the basis of the medium, the net.  Records created at taxpayer expense belong to the public.  Access important to proper functioning of the criminal justice system.  Raising privacy fears rather than establishing actual harm is an old argument  to restrict rights of access.  Judges and parties already have the tools to protect privacy  in protective orders and motions to seal.

Civil case files: only alt. 1 is supportable-all documents not sealed should be available on the net and at the courthouse;

Criminal case files: neither alt. is acceptable; too much discretion  accorded to court, and contains presumption of harm where none is shown;

Bankruptcy case files: re: amending rule 107, unclear why this is necessary-creditors need unfettered access to info.- should be controlled by parties and judge;

Appellate proceedings: final rules should be consistent with trial courts.

5

208

1/26/01

Bill Pusch

Acxiom Corp.

Little Rock, AR

Acxiom provides data integration services to business.  This generation expects quick and free flow of info., instant responses.

Public access to case files- govt. operations involve the courts, and  public's watchful eye essential. The balance between privacy and access is handled adequately under FRCP 26(c)- judges or parties may seal

Convenient public access is good policy: a cornerstone of American democracy, and a right of citizens.  Access by commercial providers aids government entities who use theirs services. PACER accounts are a  good option as they require log-ins, fees and passwords;

Civil case files: support alt. 1, all files not sealed are available; judge and party control on a case by case basis; do not support pubic file, r levels of access, or FRCP amendment options;

Criminal case files: maybe less of need for info. access here, and danger to on-going prosecution efforts; alt. 2, providing limited access is a balanced option;

Bankruptcy case files: bankruptcy is a useful tool, necessarily limits privacy for relief; full disclosure is necessary - do not favor any options presented;

Appellate case files: apply same rules that apply at trial court levels; should be reviewable.             

5

209

1/26/01

Individual Reference Services Group

Washington, D.C. 

This group is in the business of disseminating public record info.  Current court records policies have served us well and we favor open record access unless sealed.  This is  sufficient for privacy protection, and no need to change has been demonstrated, regardless of whether records in paper or electronic form.  

2

210

1/26/01

Robert Becker, Esq.

Washington,  D.C.

 

Case files should be available to the public on-line to the same degree they are available at the  courthouse.  The  privacy  "price" remains the same no matter what the medium.  FOIA and executive branch access principles are not analogous to courts.  There is a  strong presumption under the  1st amendment and common law of public access.  Public and news media have presumptive right of examination of civil and criminal files.  The  Supreme Court has not specifically addressed it , but federal appellate courts have found a right of access;

 

The right of privacy is found in common law of recent origin: because common law right to privacy is inherently a matter of state law, and the states have taken significantly different positions with regard to it, federal courts should take extreme care in fashioning rules regarding electronic access;

 

Strong presumption that court records are public, and any claims to the contrary should be assessed on a case by case basis; restricting access by the status of seeker or medium of records are too restrictive of 1st amendment and common law interests;  no evidence is offered as to dangers of internet access to support any restrictions; Supreme and lower federal courts have never found that speculation as to dangers justify  secrecy; privacy concerns should be demonstrated under the appropriate standard to the trial for issuance of protective orders.         

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1/26/01

The Reporters Committee for Freedom of the Press

Arlington, VA 

The Committee believes  electronic access is beneficial to the public.  Limitations on access may not deter any perceived infringements on privacy; believe some of the proposed policies would limit access that serves the public interest, and restrictive policies would violate the 1st Amendment:

 

Great benefits to improved access: benefits accrue to the public via the news media; information contained in court records is of vital public interest; it is important to establish a policy of openness now, before courts transition into a fully electronic system.

There is a strong presumption of access to court records: current law supports openness; privacy interests are insufficient to overcome the presumption of openness; the concept of "practical obscurity" has been misconstrued; courts have already accounted for the role of privacy      through privacy torts.  There is evidence that the public accepts open access: examples of open access set by other jurisdictions; the public has strongly objected to limitations on electronic access in other jurisdictions.  Open access is vital due to the nature of the federal judiciary as an institution.

Records that are available to the public should remain available to

the public, as new technologies develop and permit quicker and more

efficient means of accessibility.

 

Analysis of Proposed Policies: concerned the judiciary has framed options to limit access.

Re: civil case files: favor option 1, all documents not sealed are available at the courthouse and on-line; other options unacceptable as too sweeping, allow for court editors, limit access based upon the identity of individual or document sought, or allow for censorship by court officials; also unlikely that broad rules amendments would accommodate public's right to access;    

Re: criminal case files: concerned with both options; public should have same access to documents on-line or at the courthouse; 

Re: bankruptcy files: recognize concerns re: availability of ssn and bank account numbers, favor options 2 or 3 (requiring less info. on petitions or limiting personal identifying numbers to last four digits); also believe that on-line access to these records should be the same as at the courthouse;

Re: appellate files: on-line access should be the same as access at the courthouse.

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212

1/26/01

Steven M. Emmert, Dir.,

Government and Industry

Affairs

Lexis-Nexis

 

Majority  of info. Lexis-Nexis disseminates is public in nature.  The  Conference should preserve the current policy of open access to records unless sealed or restricted by statute or rule. Changing these policies would run afoul of common law and constitutional rights of public access, and result in greater administrative burdens on court staffs.  Courts retain discretionary authority to deny access to certain portions of criminal case files and information in bankruptcy files 

under rule 107.  All indications are that available legal tools (motions to seal and protective orders) are adequate for privacy protection, even  in an electronic environment;

 

Re: bankruptcy cases, if open access to all info. is not practical, the  Conference should consider collecting only info. that is appropriate  for public consumption;  but it must be recognized that the category of interested parties is broader than previously acknowledged, and that the dissemination of this info. is vital to the smooth functioning of our economy;

 

Individual privacy protection is not a basis for curtailing historic right of public access: Supreme Court has repeatedly struck down statutes imposing liability for dissemination of info. in public records; parties to litigation have expectation of personal exposure unless protected by seal or protective order; any decision to limit public right to access will ultimately lead to loss of public confidence in the courts.

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213

1/26/01

Criminal Justice Legal Foundation

Sacramento, CA

CJLF is a public interest legal foundation dedicated to the rights of victims.  The foundation is concerned re: proposal to restrict criminal case file info. Electronic access to these records a great benefit to victims.  The first criminal case option's privacy concerns regarding these records warrant limiting info. that is accessible, but not a denial of access; the second option limitation of access to parties, counsel, essential court employees and the judge should also include victims; finally, the criminal  case elements of the plan adopted should address how collateral review [habeas corpus] cases fit into the framework.

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1/26/01

Jane E. Kirtley, Dir.,

Silha Ctr. for the Study of Media Ethics and the Law

Minneapolis, MN

   

(Extensive Comments-please see full text)

After studying the proposals, we submit that the common law, First Amendment and public policy principles at stake weigh heavily against any limitations on public access to electronic court records that are already accessible in other forms.  When genuine privacy interests are truly threatened, the processes in place for sealing those records are more than sufficient to prevent unwarranted disclosure.  It would be a mistake to impose a new regime of court secrecy in which categorical and preemptive determinations are made on these matters.  These decisions are best made on a casebycase basis, upon  motion by a party; it is important for the courts and this Subcommittee to recognize that people's rights or interests in privacy are theirs to assert or waive.  It is neither the responsibility nor the role of judges to assert these rights and interests on behalf of others, even though judges must ultimately decide which records are to be sealed and which are to be kept public.  If  proposals seeking to restrict access are adopted, records will be withheld peremptorily from electronic databases without any particularized investigation into the strength of the privacy interests involved;

 

Common law and constitutional issues: proposals for restricting access contradict historical and legal practices and precedents; the presumption of openness can be reversed only by showing an "overriding interest based on findings that closure is essential to preserve higher values;" it is the duty of citizens to ensure that their courts operate lawfully and equitably, but these judgments cannot be made if the public is denied access to the evidence; proposals seeking to restrict access via electronic networks are inconsistent with the presumption of openness established by the Supreme Court and reiterated in the circuit courts, and they are inconsistent with the prevailing principle that access to government documents should be granted without reference to the identity of the person seeking those records; mechanisms already in place for sealing records are more than adequate to safeguard any legitimate privacy interests;

 

Public policy considerations: there are abundant public policy reasons for rejecting the more restrictive proposals; first, these proposals are antidemocratic and do not take seriously the desire and need for access by private citizens, nontraditional journalists and public interest organizations; moreover, there are many organizations that, with sufficient access, could engage in more direct public oversight of the courts and contribute significantly to discussions of public issues (alternative news organizations, news web sites, public interest organizations, lobbying organizations, victims' rights groups, lawyers' associations, etc.); making judicial records available on electronic networks would increase the fairness of the court records system, facilitate greater scrutiny of judicial conduct, and continue and enhance the tradition of openness that is part of the culture and law of the federal court system;

 

Practical Considerations: under Civil Case Proposal #2, a series of new categories of records would have to be created; this would impose substantial workload burdens on judges that would not serve the public's interest; similar problems are posed by Civil Case Proposal #3, which would create a tiered system of access in which access requests are evaluated based on the identity of person seeking the records; not only does this proposal raise serious equal protection questions, it would place extraordinary burdens on judicial records administrators; the Subcommittee should reject any proposal that would place limits on the accessibility of public records via the electronic net.

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1/26/01

Anonymous

Innocent individuals should not be harmed by inaccurate false or personal statements made in court.  Persons should not be punished [as a result of] making sensitive data available court.  Court case info. should be reasonably available to those with good cause or a need to know; re: releasing the last four digits of identification numbers, be aware that many use these as pin numbers [for other accounts].

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216

1/26/01

Mary Alice Baish

Acting Washington Affairs Rep.

American Assoc. of Law Libraries

AALL recognizes that the availability of legal information to all people is a necessary requirement for a just and democratic society.  Our equally strong belief is  that public access through the Internet must be tempered by privacy rights concerning personal information held in government files and private sector databases.  There is a need to improve public access to court information and case files:  strongly urge the Judicial Conference to set a common standard across all federal courts to ensure that final decisions, not just the slip opinions, are posted on the Internet for broad public access.

 

Challenges of electronic public access: share Conference's concerns that enhanced electronic access to case files may provide individuals and commercial entities the opportunity to disclose and exploit personal information; we see potential harm to individuals when: 1) commercial entities collect and aggregate a variety of publicly available personal information into personal profiles that are sold for profit; and 2) publicly available personal information leads to criminal activity, such as identity theft or stalking;.we do not believe that the courts should abridge First Amendment rights to public court records even though there are complex privacy considerations;

 

Misuse of personal information causes harm: unfettered public access through the Internet of an individual's Social Security number, date of birth, medical records, ethnic or racial identification, credit card numbers or other financial information can lead to a loss of privacy, to identity theft or other crimes, such as stalking;

 

Striking a proper balance between access and privacy:  there is a need for national uniformity across the federal court system and that the sealing of records on a casebycase basis is not the optimum solution; preferable for the Judicial Conference to institute uniform practices for district courts;  content of electronic court files should be identical, whether they are publicly accessible at the courthouse or the net; but personal identifiers would be isolated into a private file to which there would be separate levels of access depending on the requestor's relation to the court and his or her purpose;.

 

Options for Civil, Criminal, Bankruptcy and Appellate case files:

 

Civil case files: do not support option 1, the casebycase sealing of specific documents- believe that national uniformity is a desired standard; do support Option 2 to the extent that it would make available the identical "public file," whether accessed onsite or remotely through the Internet;

 

Criminal case files: support option 2, which provides limited electronic public access to "public file" documents while restricting access to potentially harmful information to the parties, counsel, certain court employees and the judge;.

 

Bankruptcy case files: broad public electronic access to bankruptcy case files involves the greatest threat to the misuse of personal identifying information;. prefer option 4, requiring the segregation of certain personal information from a "public file" by collecting it on separate forms that would be accessible only to the courts, the U.S. trustee, and the parties; 

 

Appellate case files; support option 2 which applies the same access rules to appellate courts that apply at the trial court level but allows a challenge by the appellate court to any restriction.

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1/26/01

Ed McCool, Esq.

Philadelphia, PA

This should not be done just because it can be done. Public need should be demonstrated first, and weighed against substantial harm risks for abuse present on the net.  Risks of mischief are too high.  

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1/26/01

Chris Hoofnagle

Staff Counsel

Electronic Privacy Information Center

Washington, D.C.

EPIC is a public interest research center in Washington, D.C.  established to focus public attention on emerging civil liberties issues and to protect privacy.  EPIC supports the right of public access to judicial records found in common law.  Public access to court records should be promoted.  The public interest would be best served by providing comprehensive free or low cost access to all courts over the net.

Net access heightens risks to personal privacy and  certain risks of public access to ECF are readily identifiable.  Unhindered access to bankruptcy case files may result in a further increase in identity theft [and other potential harms and misuse].  The Court has recognized legitimate privacy interests that quality a right to access public records and other records held by government; in re policy options, suggest:

 

Civil cases: of the four [options], the "public file" alternative addresses both the access interests and the privacy interests most effectively-  parties and court officers will have full access to the entire case file; a second redacted for sensitive personal information will be available at the courthouse and online;. other alternatives in the civil context suffer from weaknesses that are more likely to result in privacy violations;

 

Criminal cases: the second alternative addresses the interests of public access and personal privacy protection more effectively-  limited public access to electronic case files would be provided; sensitive information such as preindictment documents, presentence reports, plea agreements, and unexecuted warrants would only be available to the parties and court officers; the public would still have access to the indictment and the final decision of the court. 

 

Bankruptcy files: in the last option, a system where sensitive information would be segregated and collected on separate forms protected from public access would address the public access and privacy interests involved most effectively;. 

 

Appellate cases: recommend that the same access rules apply that were employed at the trial court level;  

 

EPIC recommends also that these approaches be implemented on an experimental basis in several different circuits.

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219

1/26/01

Trial Lawyers for Public Justice

Oakland, CA 

Trial Lawyers for Public Justice is a national public interest law firm   prosecuting cases designed to advance consumers' and victims' rights, environmental protection and safety, civil rights and civil liberties, occupational health and employees' rights, and protection of the poor and the powerless; urge the federal judiciary to adopt an approach that would make court files available through remote electronic means to the same extent that those files are now available in paper form;. conversely, limiting access to electronic case files or presumptively sealing court records based on content due to fears of technology would substantially undermine the public's right of access to our courts; TLPJ does not handle criminal or bankruptcy matters, and therefore is not in a position to offer comments with regard to public access re:  criminal or bankruptcy case files;.

 

civil cases: support adoption of the first policy  option, maintaining   the presumption that all filed documents that are not sealed are available both at the courthouse and electronically;

 

proposals to limit public access to electronic files or categories of  information in court records is contrary to policies underlying common law  and the 1st amendment; to restrict access to case files simply because they are electronic in form – as contemplated by policy option number three – would erect artificial barriers to public access, be contrary to the policies underlying our longstanding tradition and presumption of open courts, and effectively undermine the common law and First Amendment rights of public access to court records;  more troubling is the second policy option- it would propose to eliminate entire categories of information from the public record – consisting of both paper and electronic files; this approach would be entirely contrary to current law;, which clearly places the burden on the party seeking to seal court records to make a particularized showing that its interest in secrecy outweighs the presumption of access, and requires a case by case balancing of interests.

 

Privacy concerns  even in this age of technology  may  be addressed under existing law, which provides for protective orders where secrecy can be justified, and for civil or criminal liability in instances of negligent use or criminal use of private information.

 

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1/26/01

American Insurance Association

Washington, D.C.

AIA feels posting most court case documents  on the net would return cost efficiencies to many litigants with little or no foreseeable harm.  It  remains concerned re: consequences of placing highly sensitive personal info. on the net and  urges the Conference to examine policy options carefully.

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221

1/26/01

Dan Rode, V.P.,

Policy and Government Relations

American Health Information Management Association

Washington, D.C.   

AHIMA is a professional association that represents more than 40,000 specially educated health information management professionals who serve the healthcare industry and the public by managing, analyzing, and utilizing patient care data and making it accessible to healthcare providers.  This group believes the concepts in the notice ignore the need to keep personal health information private and confidential.  As custodians of personal health information, our members are required by federal and state laws to maintain the privacy and confidentiality of such records and information; members work with courts to insure that the  minimum of such info. is placed in court records.

AHIMA is concerned  that personal health information that is legally required to be kept private and confidential will become public due to the courts potential open electronic system. Under the discussion on civil case files, that "levels of access" might be created so that in the case of medical records or personal health information, such information could be limited to only the direct parties in the case.  This makes sense and would meet most of our concerns;, however, we believe that additional revision to the FRCP will be needed to ensure that parties do not inappropriately disclose personal information.

 

There are many federal privacy rules that we hope the subcommittee will review to ensure maximum protection of healthcare information;.  trust the Subcommittee will consider these rules, and requirements for protecting such transmissions through encryption, authentication, and other such security steps associated with electronic data protection.

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1/01/26

Privacy Rights Clearinghouse

Electronic Frontier Foundation

San Diego, CA 

Privacy Rights Clearinghouse is a non-profit consumer info. advocacy program; the Electronic Frontier Foundation (EFF) is the leading civil liberties organization, and both work to protect rights in the digital world, joining the PRC in submitting these comments;

 

PRC and EFF recognize the long tradition of open access to public court records. As principles of open access evolved in constitutional and common law, the state of today's technology could never have been envisioned; the PRC and EFF believe the potential for both intangible invasions of privacy by those who have no need to know and more tangible harms such as identity theft outweigh reliance on a system that provides full access to court records electronically.

Identity  theft is a major concern of these groups.  Individuals have the right to control how their personal information is disseminated and used.  This right is particularly important when the information at stake is personal financial and medical information likely to be included in civil, criminal or bankruptcy proceeding; the fundamental right to privacy should not be surrendered simply because an individual becomes a party to a court proceeding.  Increasing instances of this crime are certain to be fueled by easy, online access to names, addresses, telephone numbers, Social Security numbers, and often personal financial information

 

There is also potential for other frauds.  Personal info. in many court files leaves parties, witnesses, and victims vulnerable to an array of frauds. There is an almost certain prospect that easy online access to personal information will prove a bonanza for not only identity thieves, but predatory businesses such as unscrupulous tele-marketers.  Other scams directed solely at those in desperate financial straits include the foreclosure scam;  

 

Unregulated on-line info. brokers: the sale of personal information in the form of  "credit headers," direct marketing lists and public records has long been big business.  Widespread. use of the Internet has meant that virtually anyone can anonymously obtain the most personal details of an individual's life without limitation on how the information is used; personal information is often used to create profiles of individuals-privacy issues regarding public records become magnified as more and more personally identifiable data are made available on the net because the availability of such data allows for more extensive profiling of individuals, allowing corporations to create detailed dossiers about individuals, which can lead to creation of markets for secondary uses of that information that the consumer could never have imagined.

 

Policy Alternatives 

 

Civil case files: adoption of a combination of alternatives 2 and 3 may be the best route toward protecting privacy  on-line;  the Conference should specify  certain kinds of information (rather than entire documents) that will always be excluded from the public file; nor should personal financial information such as account and access numbers, income, debt level, investments and retirement fund balances or detailed medical information be included in the public file,  leaving discretion to the trial court to make additional exclusions if circumstances warrant (EFF notes all of the above, but believes First Amendment concerns still need to be factored in); PRC also supports the concept of "levels of access" to certain electronic case files, particularly while the litigation is ongoing; PRC strongly urges the Committee not to adopt a procedure that would treat electronic and courthouse access equally (alternative 1), a windfall for identity thieves and scam artists; PRC does not believe reliance upon protective orders alone will protect personal privacy and limit access to sensitive information; if necessary, the Committee should also seek amendments to the Federal Rules of Civil Procedure to account for privacy  and security interest;

 

Criminal case files: the PRC supports alternative number 1 with regard to criminal case files, that is do not provide electronic public access to full text criminal case files; agree with the reasoning behind alternative number 1, in particular the threat of harassment of co-defendants and obstacles to law enforcement and prosecution efforts;  note, in addition, the threat of harassment or even violence directed at witnesses and victims may make individuals with very important information to convey reluctant to voluntarily come before the court;

 

Bankruptcy case files: we believe the same threats to privacy and potential for illegitimate use of personal information applies to bankruptcy case files as well as civil and criminal case files;

 

Appellate case files: believe the same access rules should apply to appellate case files and trial court files;

 

Fees: although comments were not requested on the question of fees for access, we think that the Conference should consider dropping the public access charge of $.07 for downloading and printing, or atleast consider further study on the issue.

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223

1/26/01

Anchorage,AK

Public access to court documents is acceptable, but personal info. should be removed prior to their being put on the net to avoid violations of anindividual's privacy.

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224

1/26/01

Lowell,IN  

I don't feel that court decisions should be available to the public in detail on the net.  A  filing name and chapter number is sufficient-any other info. (ssn, house address, full names) can be used for fraud andendanger other household members well.  

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225

1/26/01

Stuart K. Pratt, V.P.

Government Relations  Associated CreditBureaus, Inc.

Most members are considered consumer reporting agencies under the federal Fair Credit Reporting Act and produce a range of information products utilizing public record for use in employment screening, credit  decisions, and identification and  must have full access to names, addresses and social security numbers to comply with federal law and insure info. is accurate.  Ssns remain the most stable of identifiers and should remain available for data base accuracy and accuratedata retrieval.     

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226

1/26/01

Robert F. McKew

V.P., Gen. Counsel

American Financial Services Corporation 

(Extensive comments-please see full text)

AFSC and its credit industry members appreciate the opportunity to comment.  There are those who raise concerns about debtor privacy, and suggest that information provided in adversary or contested matters be subjected to restrictions  At its core, the underlying issue is whether open public access to the records of bankruptcies is outweighed by the private nature of the information recorded in those records.  Critics have suggested changes such as no longer requiring certain information like the social security number or credit account numbers, restricting availability of sensitive information only to identified parties in interest, and limiting the availability of bankruptcy info. over the internet.  Any of these restrictions would adversely affect the system.  In addition, the requirements of the U.S. Constitution significantly limit any attempt to make bankruptcy information inaccessible to creditors, other affected parties or the public.  Other, less restrictive means of regulation, such as disclosing to debtors that information they provide on the petition is publicly available, may be beneficial.  On balance, no new regulation restricting access appears to be appropriate

 

I. Four Specific Questions Raised About Bankruptcy Case Files:

A. Amending Section 107 of the Bankruptcy Code: an amendment to section 107 of the Bankruptcy Code to specify that only "parties in interest" may obtain access to certain types of information in bankruptcy case files is not justified: 1) bankruptcy proceedings must be open to public scrutiny by the press and others both to better detect fraud and to provide independent oversight of a process; restricting access only to "parties in interest" would preclude such oversight by the press and others; also inappropriate for the federal judiciary to advocate a policy that would preclude oversight of  its functioning; 2) a restriction of information only to "parties in interest" is far too narrow, and would bar bankruptcy information retrieval services, credit reporting bureaus, academic, credit industry, debtor group and think tank researchers; 3) restrictions on access raise issues under both the First and the Fifth Amendments; 4) the "gatekeeper" function that would be necessary to separate who was a "party in interest" from who was not would require a serious and potentially inefficient governmental presence; 5) ) it has been recognized that because of the special needs for information and public oversight, debtors have had to give up some private information in order to obtain relief; the electronic availability of information does not change these needs nor justify new restrictions;

B. Requiring less information on petitions, schedules or statements: reducing the amount collected would seriously impair the ability of creditors, trustees, law enforcement agencies and the courts to perform their assigned functions, including checking on the accuracy of the info. the debtor provides and the appropriateness of the relief sought;  

C. Restrict use of ssn, other account numbers to last four digits: ssn is a unique identifier absolutely crucial to the work of creditors, trustees, law enforcement agencies; full account numbers enable creditors to identify that a particular customer is the one who filed bankruptcy; final four digits simply would not perform this function;   

D. Segregate/restrict certain information from the public file: this means the restriction of information to "parties in interest;" inappropriate for reasons discussed above;   

II. General Considerations  

A. The first/fifth amendments constrain efforts to restrict access: bankruptcy is a judicial proceeding and petitions/schedules are records of the bankruptcy court; any effort to limit or restrict access to these records by those affected will require legislative changes and is unlikely to pass constitutional scrutiny under the first amendment; fifth amendment right to due process mandates that parties affected by the bankruptcy process be able to access the information;  

B. The bankruptcy system is built upon open access:   the adversarial nature of the judicial process and the scrutiny of the public regulate compliance with restrictions on bankruptcy relief;    without open access to the information the debtor provides, that function would be substantially impaired; significant and costly changes would have to be made to the bankruptcy system to assure its integrity, such as substituting a large bureaucratic oversight and monitoring presence in the bankruptcy process; the bankruptcy  system assumes that affected parties could protect their interests because they had complete access to the information- restrictions on information would seriously undercut that assumption, and require massive changes; 

III.  The Social Security Number-abandoning use of the social security number as a means of identifying the debtor or limiting access to it would seriously impair the system, debtor relief, and public oversight:  

A.  System cannot function  unless the ssn continues to be required: ssn is the only available unique identifier of individuals maintained in the U.S.; it is the only generally recognized way to unequivocally identify a particular individual; trustees, officials, creditors and other affected parties could not find and raise cases of multiple and serial filing, or repeat chapter 7 filings within the 6 year period of limitation, unless ssn  used in prior cases was available;

B. Unless creditors, affected parties have access to ssns, remedies such as automatic stay, post-discharge injunction will not be effective; creditors will be unable to comply with the restrictions and controls of the Bankruptcy Code; the most important and expensive functions creditors perform in trying to comply with bankruptcy law is identifying a particular customer as one who has in fact filed bankruptcy; name, address and financial information alone are not sufficient; the present bankruptcy system places a high premium on absolutely accurate identification; if restrictions were imposed precluding access to the social security number, fairness as well as constitutional law would require that those entities be relieved from responsibility for complying with the automatic stay, turnover responsibilities and the discharge whenever they were unable to identify accurately their customer; such a change would clearly reduce the value of the automatic stay, the discharge, and bankruptcy relief in general;  

C.  Credit system, credit bureaus/other agencies must have ssns:  credit bureaus are recognized as the facilitators of efficient credit granting, and it is clearly a Congressional goal that the information they report be accurate; credit bureaus rely primarily upon the debtor's social security number as the crucial identifier;.

D. Public record retrieval intermediaries and servicing and collection agents all must have access to the social security number if the credit underwriting and collections systems are to work efficiently: information from these sources is important to smaller creditors who cannot support a large bankruptcy management department; agents of the creditor such as servicers and collection agents aid in efficient loan administration and access to the ssn to effectively administer cases.    

E. Access to ssn could not be restricted just to "creditors" and "parties in interest" without seriously impairing the fairness of the bankruptcy system, and the effectiveness of debtor remedies: some have proposed that access to sensitive information be controlled by a "gatekeeper"- any "gatekeeper" must be given explicit criteria to separate those that have a legitimate interest from those that do not, a   standard not available as a practical matter; creditor" and "party in interest" categories are neither unambiguous nor sufficiently inclusive of those potentially affected by bankruptcy; for practical reasons, therefore, the "gatekeeper" approach is unworkable;  

F. Public/researchers/creditor groups/think tanks must have access to the social security number in order to assure that accurate information about the bankruptcy system will be available; public has legit. interesting whether individuals have filed for bankruptcy; restrictions on access to bankruptcy court records urged by privacy advocates would leave no room for research; developing exceptions to a general rule which precluded the public access involves difficult judicial decisions, and  raises issues of governmental control over the development of ideas;    

IV.           The Debtor's Financial Information  

Critics have urged that access to some or all of this information be restricted.  In particular, there has been concern with access to credit account numbers, but there has also been expressed concern that in the schedules the debtor must disclose assets, liabilities, income and expenses, family size, and expenditures of a sensitive nature

 

A. Creditors/other affected parties cannot be excluded from access to debtor financial information: without access to debtor financial info., affected parties cannot adequately evaluate their position, either as against the debtor or in relation to other, competing creditors; cannot determine whether to object to exemptions, seek to lift a stay or a section 707(a) or (b) dismissal motion, or in some instances even whether and how to prepare a proof of claim;

B.  Credit bureaus, public record intermediaries, servicing agents, collection agencies, public, and press must have access to this information: require this information to assist both those creditors whose interests or property are involved in the bankruptcy, and those creditors who might in the future consider extending credit or enter into other transactions with the debtor; the need to maintain public confidence in the bankruptcy system requires that bankruptcy proceedings not be carried on in secret, and access for the press, academic and other empirical research is critical;

 

V.  Trustee Information  

These officials often have considerable information about the debtor's financial affairs and ability to pay, and, in the case of Chapter 12 and 13 proceedings, plan performance; in Chapter 12 and 13 cases, the trustee is the person usually most informed about the debtor's plan and its performance.  In particular, only that trustee has the information to determine if the debtor is current on payments to the trustee mandated by the plan, or the amount the trustee considers to be still owing a creditor under the plan; for those actually or potentially affected by the debtor's bankruptcy (whether technically creditors or not), this information is, at the least, just as important as the public record information available in the court files; unless such information is openly available to those interested in the bankruptcy proceeding, they will be seriously obstructed in determining what steps, if any, they need to take to protect their interests; the general public likewise has an interest in monitoring how well trustees are carrying out their responsibilities under the Code;  

VI.           Other Considerations  

A. There is no reliable evidence of quantifiable harm re: privacy:  unaware of  evidence of abuse under the present system of availability; of bankruptcy information, either held by the courts or by the trustees; some have suggest hypothetically that information in bankruptcy records, and particularly the social security number, might be used for the purposes of identity theft or other fraud; identity theft in the case of a person who filed bankruptcy unlikely because the economic incentives for such theft are not there; concerns do not justify restricting availability of information about debtors who file for bankruptcy simply to make it harder to offer credit to them; others have suggested that the availability of  bankruptcy information should be restricted because it might be used to discriminate in the granting of new credit- but prior bankruptcy is an accurate predictor of future repayment likelihood;  

B. Restrictions on the development of more efficient means of obtaining bankruptcy information are not desirable: increased availability of bankruptcy court records and trustee records by telephone, online and through retrieval intermediaries has significantly improved bankruptcy administration and increased the efficient workings of the bankruptcy system; the availability of this information to the public has made possible better oversight of the bankruptcy system, and, thus, furthered the ability of the bankruptcy system to identify fraudulent and abusive use of bankruptcy, and to evaluate proposed reforms.  

Conclusion  

In addition to the significant statutory and constitutional impediments to restricting access to bankruptcy information, as a matter of policy, such restrictions would be neither feasible, fair, norconsistent with appropriate public oversight.

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1/29/01

Seattle,  WA 

Urge that comments, except where confidentiality is requested, be posted ASAP on this web site.

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228

1/29/01

Brian K. Long

National Group Pres.

Dolan Media Co.

Minneapolis, MN  

Dolan Media Co. is a leading collector of bankruptcy info.; agree with need for a study; a one size fits all approach will not work re: delicate balance between individual privacy and the public's right to know; believe judiciary's long-standing tradition of open access should be maintained, and solution should take into account five principles:

 

1) open access to basic court info.;

2) decision to seal records remains with presiding judge;

3) continued access to all records by parties in interest;

4) ability of duly authorized  3rd parties to stand in the shoes of parties in interest;

5) realization that info. in sealed records remains a legitimate subject of inquiry.

 

Civil case files: option 1 is the only option that maintains access without placing undue admin. burdens on the courts;

Bankruptcy case files: do not think any changes are necessary; open access leaves total control with assigned judge; access to ssn remains necessary;

Appellate case files: same access rules should apply as at the trial court level.       

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229

1/29/01

 

Agree with civil case option 3; access to ssn, Schedule I info. on bankruptcy petition should be restricted; names of debtor's dependent children should be removed; attorneys filing electronically should inform clients of public exposure; petitions on the net adversely effect debtors through publicity, expose them to harm via misuse of info., and deny them freedom in the conduct of their affairs.

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230

1/29/01

Norma Hammes, Pres.

National Assoc. of Consumer Bankruptcy

Attorneys

Washington,  D.C.

Attaching comments previously submitted to the Executive Office of U.S. Trustees with regard to its study of Privacy Issues in Bankruptcy Data; final recommendations for policy, regulatory or statutory changes:

 

a. sensitive data should be compiled on separate documents available to creditors and the trustee, but not to public;

b. serious penalties should be imposed on creditors who use bankruptcy info. for any other or inappropriate purpose;

c. trustee should be held liable for disseminating or allowing inappropriate dissemination of sensitive info.;

d. any entity owing hardware upon which any of the info. described as protected is stored, or which operates a web site containing such info., should  be held liable and subject to serious penalties if it accesses or uses such stored data in any way.

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231

1/29/01

American College of  Trial Lawyers

National H.Q.

Irvine, CA

College is dedicated to maintaining and improving standards of trial  practice, admin. of justice and ethics of legal  profession;

ACTL's Committee on Federal Trial Court Procedure:

-sees no reason to distinguish  between electronic and paper files;

Parties can protect their privacy interests through Rule 26 © protective orders.  To extent that Rules 26 orders are deemed insufficiently protective or so broadly necessary that individual orders are impractical, the underlying privacy concerns seem equally applicable to paper or electronic records.  Accordingly, whatever judgements are made with regard to privacy concerns should be clearly set forth in the FRCP.        

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232

1/30/01

Charles H. Krumbein

Richmond, VA

Bankrupts are reluctant filers.  Identity theft is increasing.  Courts should protect filers from abuse.  Those with legitimate interests should be allowed access by appearing at the courthouse.  Commentor agrees with proposed policies except Bankruptcy policy option 2.  Courts should require full and complete disclosure with safeguards for debtors.        

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233

1/30/01

Mark J. Mahoney

Harrington and Mahoney

Buffalo, N.Y.

 

The trend towards electronic case files is irreversible and necessary for efficiency.  There is scant evidence of defendant misuse of criminal data, just prosecution data that is not in the record, to disadvantage of defense.  A more full development of electronic files will help address this.

 

Criminal case files: categories of info. need to have limited access; sealing of record should continue; must decide what is accessible at all, and whether public info. should be treated the same at the courthouse and on the net; challenges assumptions of options: that criminal case files are "different;" that these files are not extensive; that the prosecution  and defense attorneys are usually located near the courthouse; that those with legitimate needs can access at the courthouse; favors option of limited electronic access to criminal case files; PACER provides info. with a  record of access sought .

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234

1/31/01

Investigative Reporters and Editors, Inc.

Missouri School of Journalism

Columbia, MO.   

IRE is a non-profit dedicated to improving quality of investigative reporting, and addresses 3 issues:

 

1) common law, U.S. constitution, and statutory scheme that provides for operations and funding of the federal courts mandate full public access to electronic records via the internet;

2) pay per view user fees for public access to court records available on federal judicial web sites are unjustified, unreasonable, and should be discontinued;

3) existing statutes, rules and regulations provide adequate protection for privacy and confidentiality, and new restrictions based  upon novel applications of  "practical obscurity" doctrine are unwarranted.    

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235

2/5/01

Jeff Schrag, Publisher

The Daily Events

Springfield, MO

Court proceedings/records should be closed only in extreme cases, and then only for a set time.  Do not restrict records that are currently public.  If the problem is the internet, then keep records off the net but open at the courthouse.  

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236

1/24/00

 Dexter, MI 

Access to distant court records via computer greatly reduces burdens and disadvantages on remote parties in interest.  The proposal for modifications to Rule 107 to  increase judicial discretion to seal is inappropriate.  Reducing  filing info. requirements on plans and schedules, as well as restrictions on access all make ascertaining debtor status and tracking compliance more difficult.  This is particularly true with regard to the integrity of automatic stay provisions.  All enhance the likelihood of debtor abuse.  The proposal to restrict sensitive account numbers to last 4 digits has some merit, but must be balanced against need to know and on-going access needs of parties in interest.  Segregation of info. from public file could work for debtors against larger public and creditors.    

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237

12/20/00

Jeffrey Keene

WBTV

Charlotte, N.C.

Commentor is Investigative producer and understands the need to protect some info.  The debate is close and he leans toward full disclosure.  It is  more dangerous for a handful of people to make arbitrary  decisions.  The public interest best served by unfettered flow of public info.     

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238

12/27/00

 Colonial Beach, VA 

Commentors sees  2 separate issues:

1) if new technologies present risks that were formerly non-existent, than present rules regarding disclosure/sealing need updating; when present rules put into place, disclosure of info. like ssns, bank account numbers etc. posed less risk; if litigants exposed to more risk than anticipated then, rules, procedures should be changed to mitigate it;

2) does additional risk justify discrimination with regard to access? rules should not support concept of wealth determining access; cannot justify withholding info. from free or inexpensive access modes in order to protect privacy, while allowing proximity or wealth to determine access as under present system.     

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239

12/20/00

Robert L. Hartley

Henderson Daily Withrow and Devoe

Indianapolis, IN

As neither completely restricted nor completely unrestricted records access policies are tenable, the following categorization scheme and procedures are offered:

 

Info. will be divided into  3 defined and enumerated categories:

1) confidential by default (ssn, financial account numbers, etc.),  submitted on separate forms;

2) confidential by request of proferor (income; medical info., etc.), submitted on separate forms ;

3) everything else, confidential only after the granting of a motion to seal;

Burden is on proferor to properly designate and submit in proper form, minimizing burden on the court; files will carry a public notice regarding the nature of the  designation.          

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240

2/9/01

United States Department of Justice

Kevin Jones, Acting Assistant Attorney General

Washington, DC

(Extensive Comment-please see full text)

The DOJ comments are very extensive; advocate short and long term approaches to the privacy issues; describe the unique perspective of the DOJ re: policy and enforcement, and focuses on the inherent tension between public access and privacy; also comment on the role of the judiciary in trying to strike a balance between these two interests, providing specific comments on each of the enumerated policy options:

 

Civil case files

 

alt. 1: "... all files not sealed are available...;"

This alternative does not take differences between paper and electronic files into account; strongly disagree with the sealing of documents to address privacy concerns;

alt. 2: "Define what documents should be in public file...;"

Should consider "information" in addition to "documents;" underlying questions must involve extensive public policy debate re: court system, public records, and privacy in the electronic age;

alt. 3: "Establish levels of access...;"

DOJ supports this alt. as an interim approach as it allows full access at the courthouse, and begins to take advantage of remote access benefits- but employment of additional standards and technologies may be necessary;

alt. 4: "Seek and amendment to one or more rules of the FRCP...;"

Premature for anything other than a "levels of access" approach;            Criminal case files

 

alt. 1: "Do not provide electronic access...;"

alt. 2: "Provide limited electronic access...;"

When considering alts. 1 and 2, public access/privacy concerns must be carefully balanced, but unauthorized access must be assumed however access is buffered or channeled; access policy must take into account ideal and practical considerations when dealing with sensitive criminal case info., recognizing legitimate need for public access to at least core case info.;

 

Bankruptcy case files

 

alt. 1: "Seek an amendment to section 107 of the Bankruptcy Code...;"

May be needed, and should entail close coordination between judicial and executive branches, including possible legislative changes;

alt. 2: "Require less information on petitions or schedules...;"

Present info. requirements are the result of careful consideration over a long period; rather than change amount or character of info. required, suggest limiting access (e.g., to creditors, parties in interest, etc.);

alt. 3: "Restrict the use of Social Security , credit card, ...numbers...;"

Rather than requiring less info., favor limiting access to sensitive info. to those directly involved in a case (e.g., creditors, parties in interest, etc.);

alt. 4: "Segregate certain sensitive information from the public file...;"

Presumption should be that access extends to all "core" documents relevant to  understanding/monitoring judicial proceedings; sensitive personal/financial info. should be deemed "non-core" data, obviating need to seek orders to seal in many cases; access should be limited ( to creditors, parties in interest, etc.); analogous mechanisms should be used to limit manual access to this info. in paper files as well;

 

Appellate case files

 

alt. 1: "Apply same access rules to appellate cases as apply at the trial court level."

DOJ agrees;

alt. 2: "Treat any document sealed or subject to public access restrictions at the trial court level with the same protections at the  appellate court level...;"

DOJ agrees;

 

DOJ concludes by providing targeted input into the privacy policy making process and advocate the maintenance of the status quo while the process develops; suggest the Conference establish a commission to define the issues, proposes a vision , recommend policies, and suggest mechanisms for changing policies; DOJ notes the development of CM/ECF and electronic filing capabilities create issues separate from privacy issues re: electronic access to cases; also note need to involve National Archives, and need for awareness that any policy developed may impact the way files are used; finally caution that the courts need to strive for consistency across jurisdictions with the approach finally adopted.

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241

-

Jeffrey E. Risberg

Assistant Federal Public Defender for the District of Maryland

Defenders Services Advisory Group

This comment pertains only to criminal files. The commentor endorses Option 2 for criminal case files and Option 2 for criminal appellate cases. They point out problems with some documents which are submitted to the trial judge but not filed with the clerk and question how such documents would be treated. They recommend the formation of a commission or working group to identify which documents in criminal cases should have the presumption of free public access.

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242

1/24/01

Evan A. Davis, President

The Association of the Bar of the City of New York

Defenders Services Advisory Group

Committee on Federal Courts: Caution should be used in addressing these issues as the dimensions of the problems are not yet clear. Three general points can be made at this time:1) the privacy implications of public electronic access to court case files are significant and will become more serious in the future; 2) rules governing public electronic access to court case files should be adopted on a uniform nationwide basis, not a court-by-court basis; and 3) differential electronic access to court case files raises significant issues. The committee recognizes that differential access may be the answer if privacy issues cannot be controlled by other means; however, it is reluctant to endorse any form of differential access until a strong showing of necessity is made.

Committee on Communications and Media Law: Electronic access to court files represents a positive change. Motions to seal are adequate for litigants to protect information they wish to remain private, no matter whether this information is in paper or electronic form. Any type of discriminatory access, either between those seeking access to paper versus electronic records or among those seeking access to electronic records based on status, are impermissible as a matter of fairness and constitutional law. The public or private nature of a document may not be clear from its face, as the press often looks for a pattern of activity (i.e. selective prosecutions) over time. Public access to statements made in court about "private" matters could prevent perjury and other abuses. Litigants who make an affirmative choice to use the court system should abandon concern about the public release of private information. Many forms of ADR are wholly private and confidential and could provide another means of resolving disputes for those concerned about privacy.

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