Conference Adopts Policy on Electronic Access to Court Files

The public debate was, at times, spirited, the comments ranging as widely as the geographic locations: Close the files and protect the filers. Keep the courts open and accessible.

Judge John Lungstrum (D. Kan.) heads the 14-judge Committee on Court Administration and Case Management, and he also chairs the Conference Subcommittee on Privacy and Public Access to Electronic Case Files, which held the public hearing and accepted public comment on the issue.

"With Internet filing comes a court's ability to let anyone, at any time, view, print or download elec-tronic court files," said Lungstrum. "While such access may delight those who believe in the unfettered availability of information, there are others who are equally dismayed about the loss of privacy and the abuse such access may bring. We tried to weigh both sides in forming our recommendations. As I pointed out at the March hearing, the core question really is whether, and to what extent, remote access should be extended beyond the participants in litigation and court personnel. "

The Judicial Conference policy on electronic public access to court files is detailed in this issue. In compiling the report and recommendations adopted by the Judicial Conference,
the Committee on Court Administration and Case Management also considered the comments of each of the liaison committees. These were the Committee on the Administration of the Bankruptcy System, the Committee on Criminal Law, the Committee on Rules of Practice and Procedure, and the Committee on Automation and Technology.

In addition to the specific recommendations allowing electronic public access to appellate, civil and bankruptcy case documents with personal identifiers modified or redacted, and no electronic public access to criminal case documents, the Committee on Court Administration and Case Management adopted the following general principles

• There should be consistent nationwide policies in federal courts in order to ensure that similar privacy protections and access presumptions apply regardless of which federal court is the custodian of a particular case file.

• Notice of these nationwide policies should be given to all litigants in federal court so that they will be aware of the fact that materials which they submit in a federal court proceeding could become available on the Internet.

• Members of the bar must be educated about the policies and the fact that they must protect their clients by carefully examining the documents that they file in federal court for sensitive, private information and by making the appropriate motions to protect documents from electronic access when necessary.

• Except where otherwise noted, the policies apply to both paper and electronic files.

• Electronic access to docket sheets through PACERNet and court opinions through court websites will not be affected by these policies.

• The availability of case files at the courthouse will not be affected or limited by these policies.

• Nothing in these recommendations is intended to create a private right of action or to limit the application of Rule 11 of the Federal Rules of Civil Procedure.

A copy of the committee's report can be viewed at http://www.uscourts.gov/Press_Releases/att81501.pdf.

Electronic filing, part of the Judiciary's Case Management/Electronic Case Files project, is designed to replace aging electronic docketing and case management systems in more than 200 bankruptcy, district and appellate courts by 2005. In the district courts, CM/ECF is currently handling only civil cases, but criminal case management will be available later this year.

With CM/ECF, courts will be able to accept case file documents in electronic format and accept filings over the Internet—if they choose to do so. CM/ECF also gives courts the ability to make their documents available to the public over the Internet. Some courts also are creating electronic images of case file documents and making these images available online. Access to electronic documents is through PACER, at a cost of $.07 per page. Attorneys of record and parties in a case, including pro se litigants, receive one free electronic copy of all documents filed in their cases. Attorneys are not charged additional fees for filing electronically, although existing document filing fees apply. The cost of copying a court record at the courthouse remains $.50 per page.