Court File Access Weighed in Public Hearing

"The core question really is whether, and to what extent, should remote access be extended beyond the participants in litigation and court personnel," Chief Judge John Lungstrum (D. Kan.) told a public hearing audience as he summarized the continuing policy study.

Presiding over a Judicial Conference subcommittee's March 16 hearing, he explained that the Case Management/Electronic Case Files (CM/ECF) project to replace aging systems in federal courts has raised privacy considerations.

"The judicial branch recognized, as have people in all aspects of our society, that with the use of the Internet comes the possibility of a loss of privacy which has not, as a practical matter, been an issue before," said Lungstrum, who chairs the Conference Sub-committee on Privacy and Public Access to Electronic Case Files.

The subcommittee, which began its study in 1999, was created by the Judicial Conference Committee on Court Administration and Case Management, which Lungstrum also chairs. It has liaisons from four other Judicial Conference committees—the Committees on Automation and Technology, Administration of the Bankruptcy System, Criminal Law, and Rules of Practice and Procedure.

After receiving the subcommittee's recommendations, the respective committees will provide input to the Conference Court Administration and Case Management Committee for Conference action in September.

"Whatever the outcome ... there is no change contemplated in the ability of the public to access docket sheets over PACER (Public Access to Court Electronic Records) and to access court information, including opinions in cases, which are made free of charge to the public by an expanding number of federal courts on Internet web-sites," Lungstrum said. "In addition, court records as always will be freely available to the public at courthouses."

To help it decide, the subcommittee solicited public input—and received more than 240 comments. It then conducted the fourhour public hearing, at which 15 witnesses expanded on previously written comments and fielded questions from subcommittee members.

Electronic files are created in two ways. Some courts use electronic imaging, converting paper files to electronic ones. Others have opted to receive electronic court filings from lawyers. In the district courts, CM/ECF is currently handling only civil cases, but criminal case management will be available later this year. To date, more than 5,000 attorneys have used the Internet to file federal court documents.

Their numbers are sure to grow. The CM/ECF system will be rolled out nationally over a two to three- year period that began in March 2001. The rollout for district courts is scheduled to begin in mid2002, and for appellate courts in 2003.
Charlotte Hardnett (right), acting general counsel of the Social Security Administration, was one of 15 witnesses to testify before the Subcommittee on Privacy and Public Access to Electronic Case Files at its March 16 public hearing.

Bankruptcy courts are leading the way. By the fall of 2001, a total of 41 bankruptcy courts will have received the system.

Electronic filing fees are not added for lawyers who use the Internet, but existing documentfiling fees do apply. And with Internet filing comes a court's ability to let anyone, at any time, view, print or download electronic court files. Such access is through PACER, which carries a 7¢ perpage charge. Attorneys of record and parties in a case, including pro se litigants, receive one free electronic copy of all documents filed in their cases.

Case files traditionally have been open for public inspection and copying unless sealed by court order. But files often contain sensitive information—Social Security and bank account numbers are prime examples.

For civil case files, the subcommittee considered four policy options:

• Maintain the presumption that all filed and unsealed documents are available both at the courthouse and electronically. It would be up to counsel and pro se litigants to protect their privacy interests on a casebycase basis through motions to seal specific documents or to exclude certain files from electronic availability.

• Treat paper and electronic access equally but define "public file" in a way that makes clear what documents should be available for inspection, either at the courthouse or electronically.

• Establish levels of access to certain electronic case file information. Software programs could restrict electronic access to certain documents, by the identity of the individual seeking access or the nature of the document, or both. Judges, court staff, parties and counsel would have unlimited remote access to all electronic case files.

• Seek an amendment to one or more of the Federal Rules of Civil Procedure to account for privacy interests.

The subcommittee received wideranging advice, from advocates of virtually complete electronic access, backers of stringent protections for privacy and those, like the Justice Department, somewhere in between. The public comments can be read at www.privacy.uscourts.gov.

Lungstrum noted that state courts, state legislatures, and Congress also are exploring the issue.

Other members of the subcommittee are Magistrate Judge Jerry A. Davis (N.D. Miss.); Chief Bankruptcy Judge J. Rich Leonard (E.D. N.C.); Chief Judge Samuel Grayson Wilson (W.D. Va.); Judge James Robertson (D. D.C.), liaison for the Committee on Automation and Technology; Judge Emmet Sullivan (D. D.C.), liaison from the Committee on Criminal Law; Judge Sarah Vance (E.D. La.), liaison for the Committee on the Administration of the Bankruptcy System; and Gene W. Lafitte, a New Orleans lawyer, liaison from the Committee on Rules of Practice and Procedure.