Committee Weighs Privacy and Access Issues

_Q:Chief Judge Lungstrum, you’re not only the chair of the Committee on Court Administration and Case Management, you also chair a special subcommittee on privacy and public access to electronic case files. Why was the subcommittee formed?

_A: It was a recognition by the Judiciary that with the greater use of scanning and websites and the anticipated onset of electronic case files, information that historically had been public record—but in the Supreme Court’s words was "practically obscure" because of the inconvenience of coming to the courthouse to get it—would suddenly be much more available to people who wished to access that information. The thought was that the Judiciary should determine whether or not this created any potential issues related to privacy that ought to be addressed before electronic access to files was so widespread that it was too late to effectively address them.

_Q:The issue of access to electronic case files was considered by your Committee, and its recommendations were adopted by the Judicial Conference in September. But there was a lengthy process behind those recommendations. Can you tell us something about that?

_A:I would divide the process roughly into three phases. The first phase, which began in the summer of 1999, looked at what potential problems there might be with electronic access to files, and what solutions and alternatives might be available. It was a brain-storming, data-gathering phase in which the subcommittee heard from experts in the field of privacy and the law and tried to come up with alternatives, running the gamut from fairly restrictive to wide open public access.

The second phase narrowed the alternatives down to a handful. These were put out for public comment from the middle of November 2000 to the end of January 2001 on the Judiciary’s website, soliciting written comments. At the conclusion of that phase, we reviewed what we had received to determine whether or not there was some public consensus about what should happen. There were diverging viewpoints. So we took the next step, which was to have a public hearing at the Thurgood Marshall Federal Judiciary Building. The speakers represented various viewpoints, including the media, privacy groups, government (from the Social Security Administration to the Department of Justice), practicing lawyers, and law librarians. It was a very, very diverse group of people.

The third phase of the process involved formulating the recommendations. That began with the subcommittee hammering out what it thought was the appropriate recommendation to make to the full Committee on Court Administration and Case Management. The recommendation also went to the committees with liaison representatives on the subcommittee, which included the Committees on Automation and Technology, Criminal Law, Rules and Bankruptcy, to get their input. CACM was the last of the committees to meet. We had the benefit of the subcommittee’s recommendation and the comments by the other committees. The full committee formulated the recommendations that were eventually sent to and approved by the Judicial Conference. So it was indeed a lengthy process involving all sorts of input from the public and various components of the Judiciary family.

_Q:Broadly, the recommendations say documents in civil cases and bankruptcy cases, with some personal identifiers excluded, should be made available electronically, but that access to criminal case documents should not be available at this time. Were any of these recommendations controversial?

_A:No, largely because of the many opportunities for public comment. The final recommendation made by CACM to the Judicial Conference started with several alternatives for each case type—civil, bankruptcy, criminal, and appellate. We evaluated the comments, then picked among those alternatives or modified alternatives in light of the comments and of our own experience. We didn’t cater to the public commentary in the sense of giving up things we thought were important, but we were affected by the commentary in formulating the recommendations.

After CACM made its recommendations in July, we were given authority by the Executive Committee of the Judicial Conference to make these recommendations public prior to Conference review, and we made every effort to solicit any additional thoughts. Our hope was that if any of the recommendations were so controversial as to create a well-reasoned and very adamant opposition to them, the Judicial Conference certainly should take that opposition into consideration in its decision whether or not to adopt this recommendation.

Perhaps the most interesting thing of the entire process was that in the second round, the comment was largely favorable. I think most people—even those who took positions at both extremes—recognized that the course we recommended took into account legitimate considerations and attempted to address them in a way that did not shut people out or expose sensitive information without any consideration of the fallout.

_Q:What are the next steps your committee will take to implement the recommendations?

_A:We‘re in the process of working on that now. We have again established a subcommittee that has been broken up into subgroups to focus on each of the areas of the recommendations. For example, in the bankruptcy area, there’s the high probability some legislative changes will be needed to fully implement the recommendations. In the civil area, we need to determine just how we eliminate identifiers or keep Social Security matters off-line.

The criminal recommendation not to provide remote, public electronic access is to be reconsidered within two years. Our subcommittee and the full CACM Committee took that very seriously. The technology of electronic access is fluid, as are people’s expectations in regard to privacy versus access to information in this electronic era. What we might recommend today in a relatively cautious or conservative posture may, with the test of time, prove too restrictive. So one of the duties of the criminal subgroup is to determine how we might decide whether this recommendation is final or might need modification. For example, we’ve heard from a couple of courts who have previously made criminal files, in whole or in part, available electronically. They have discontinued this access because the Conference adopted this particular policy. They have, however, suggested they’d be happy to help us take a look at whether or not that’s the right answer to the situation for the long-run.

CACM plans to make a report to the Judicial Conference regarding any amendment to the recommendations no later than September 2003.

_Q:Is there a date certain by which time courts have to comply with the Conference recommendations? Will the courts’ adoption of Case Management/Electronic Case Files be affected by the privacy recommendations?

_A:The answer to the first question is now. The policy has been adopted, and courts can begin educating the bar and litigants immediately. But implementation requires additional work. For example, in bankruptcy cases, regardless of Judicial Conference policy, if the statute requires a Social Security number in a filing, the Conference can’t override it. However, we can and are exploring statutory, rule, and form amendments to implement the policy. The subcommittee is also working on a model nationwide local rule that will help to promote uniform implementation.

I don’t know that any particular court will or will not choose to either expedite or delay its use of CM/ECF based upon the privacy recommendations, but we could see that CM/ECF would simply be the way in which documents would be created and maintained. Therefore a policy ought to be adopted, at the very least, before we have widespread usage of electronic documents.

_Q:What else is your committee working on?

_A:We have spent a lot of time this last year focusing on several very important topics, including the changing nature of litigation in federal courts and the extent to which certain statistical analyses might be used to identify courts in need of assistance with cases processing. We’ve continued to focus a great deal on court administration and the responsibilities of chief judges. We’re taking a look at the civil litigation manual and how that might help judges better understand their role in case management. We also worked on developing model ECF rules for district and bankruptcy courts that were adopted by the Judicial Conference in September.

If it weren’t for the tremendous staff that we have—and it has been my experience that the staff of this Committee is extraordinary—I’m sure we wouldn’t be able to get as much done. I think all of us judges try to put in as much time as we possibly can to work on these things, but obviously we have other duties too. Staff is able to get in there and attend to the work that needs to be done with such a high degree of competence and initiative that it makes me feel very good and very privileged to work with them.