With the Internet making publishing so easy, public information is much more accessible.  Court documents, unless sealed by a judge, once “remained in practical obscurity” because few took the time and effort to find them.  Now court documents are posted on the web.  Are restrictions needed?

Through Electronic Case Filing (ECF) personal bankruptcy filers unwittingly share with strangers social security, bank and credit card numbers, account balances and even names and ages of their children.  Court files can even contain medical and psychiatric records, tax returns and unproven allegations.

According to a government web site, a year ago ECF was being used in five of the 90 federal bankruptcy courts from New York Southern to California Southern.  The Wall Street Journal reports that today 100 state courts have ECF.

The National Park Service asks, “How does privacy legislation affect web publishing?”  One of the four components of privacy protection is, “protection from public disclosure of private, potentially embarrassing information, such as medical, legal, or counseling information.”  But 5 USC 552 doesn’t prevent court cases from exposing this identical information to the public, online or not.

FOIA, which does not provide privacy information, doesn’t apply to court documents.  What will keep courts from revealing oral and video transcripts and tapes, photographs (including portraits, candid shots, and images of private residences), video and audiotapes?

The Journal tells of Maryland citizens posting depositions on the Internet just to get “the truth to come out.”  The poster’s attorney told them to go ahead, saying, “It’s a clear First Amendment issue.” In a different case cited elsewhere in the Journal, a U.S. District Judge in Manhattan is quoted as saying that if the material “hasn’t been designated confidential, there isn’t any argument…to suppress it from the Internet.”

Even if the judge seals a court record, laws do change and records can become unsealed by the same or a different judge.  In various states, sealed adoption records containing identifying birth family information have become unsealed by court order.

A letter from California Newspaper Publishers Association’s General Counsel Thomas Newton, to California State Assemblyman Lou Papan, shows support of Papan’s bill, AB 1759, which requires state agencies’ websites to “list all publicly accessible reports and studies prepared by that agency.”  Newton says “complying with public records requests is time-consuming and that the bill will free-up staff,” that newspapers have an interest in accessing records; and that the bill will allow citizens “free, 24 hours-a-day access to a wealth of information.”

Until Internet privacy limits are in place, be aware.  If we are involved in a bankruptcy, divorce or other court case, we may have to rely on the arbitrary lawsuit, injunction or sealed record to be the privacy enforcer.

Bibliography & Resources

http://www.bankruptcysoftware.com/ecf01.html
Electronic case filing (ECF) involves filing all or part of a case electronically by disk, email or Internet.  Already mandatory in some places, this site contains links and information about courts using ECF.

http://www.vaeb.uscourts.gov/ecf/ecffaq.html
Frequently Asked Questions (FAQS) about electronic filing

http://www.nps.gov/helpdesk/privacy.htm
Privacy and publicity legislation

http://www.cnpa.com/Leg/Letters/AB%201759%20author%20letter.html
California Newspapers Publishers Association

Markon, Jerry. “Curbs Debated As Court Records Go Public on Net.” Wall Street Journal 27 February 2001, secB1, 4.

 She can be reached by email at jana@barberio.com