Vol. 36, Number 10—October 2004

Electronic Access Available
to Criminal Case Files

Beginning November 1, 2004, all criminal case file documents available to the public at a courthouse also will be available remotely through the court's electronic access system.

Remote electronic access to civil and bankruptcy case files has been available since 2001. Similar access in criminal cases was delayed while a pilot project involving 10 federal district courts and one court of appeals was conducted. A Federal Judicial Center study of the project determined the advantages and disadvantages of such access to criminal cases.

Subsequently, at its September 2003 session, the Conference amended earlier policy to allow remote electronic access to criminal case file documents. The effective date of the new access was delayed while specific guidance on the operation of a new policy was developed by the Conference Committees on Court Administration and Case Management, Criminal Law, and Defender Services. The Conference approved the guidance in March 2004. To implement the new policy, software changes had to be made in the current case management/electronic case files (CM/ECF) product, and this software has been distributed to the courts.

Under the new policy, if a member of the public can access a criminal case file document at the courthouse, he or she should be able to access that same document through the court's remote electronic access system. However, if a court is in the process of implementing CM/ECF, remote access to electronic criminal case files may not yet be possible.

As with civil and bankruptcy cases, personal data identifiers must be redacted by the filer of a criminal case document, whether the document is filed electronically or in paper. These redacted identifiers are Social Security and financial account numbers to the last four digits; the names of minor children to the initials; dates of birth to the year; and home addresses to the city and state. It is the filer's obligation to redact these documents.

There remains no public access for certain documents, whether in paper or electronic form. These include unexecuted warrants, presentence reports, supervision violation reports, the statement of reasons that is part of a criminal judgment, juvenile records, financial affidavits submitted seeking court-appointed counsel, ex parte requests for expert or investigative services at court expense, and sealed documents. Courts maintain the discretion to seal any document.

A Federal Judicial Center study of remote public access to electronic criminal case documents reported that the majority of federal judges in the study favored access. Among the concerns cited for limiting access, however, was the threat of identify theft, followed by the identification and possible harm to cooperating defendants, witnesses, or victims.