Court Records and Data Privacy: Online or Over the Line? Professor Peter P. Swire Moritz College of Law The Ohio State University Judges Day November14,

“Court Records and Data Privacy:

Online or Over the Line?”

Professor Peter P. Swire

Moritz College of Law

The Ohio State University

Judges Day

November14, 2002

Overview

My background Legal background on court openness and

privacy Federal bankruptcy and privacy study Other legal considerations Conclusion

I. My Background

Clerk in the 2d Circuit, 1985-86 Law Professor since 1990

– First Internet law article 1992– Editor, Cyberspace Law Abstracts– Brookings book & other privacy writings– See www.peterswire.net

Ohio State since 1996– Now direct new Washington, D.C. summer program

Chief Counselor for Privacy

Office of Management & Budget, 1999 to early 2001– HIPAA medical privacy rule– GLB financial privacy law & rule– Chair, White House Working Group on how to

update wiretap & surveillance laws– Safe Harbor with European Union– Government records, including study on privacy &

bankruptcy records

Background on Public Records

History of both legal openness and significant, practical obscurity

History of legal openness– Common law right “to inspect and copy public

records and documents, including judicial records and documents”

– Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978)

Legal Openness

6th Cir. “Trial court must set forth substantial reasons for denying” access to its records, U.S. v. Beckham, 789 F.2d 401(1986)

5th Cir. “While other circuits have held there is a strong presumption in favor of the public’s common law right of access to judicial records, we have refused to assign a particular weight to the right.” SEC v. Van Waeyenberghe, 990 F. 2d 845 (1993)

Legal Openness & Discovery

Presumption of access stronger for filed than non-filed documents

Less clear on documents filed in connection with discovery

Some courts find no right to access to discovery documents submitted in connection with discovery motions, Anderson v. Cryovac, Inc. 805 F.2d 1 (1st Cir. 1986)

Legal Openness & 1st Am.

1st Amendment right to attend criminal trials, to guarantee freedoms such as speech & press, Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980)

No Supreme Court ruling on 1st Amendment right of access to civil trials or court documents

McVeigh case & denial of press requests for sealed documents, 119 F.3d 806 (1997)

Privacy Limits on Access

Even where presumption of openness, courts may restrict access:– “Every court has supervisory power over its

own records and files, and access has been denied where court files might have become a vehicle for improper purposes” Nixon v. Warner Communications.

Practical Obscurity

US DOJ v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989)

Recognized privacy interest in rap sheets & other information publicly available but “practically obscure”

Court noted “the vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information”

Accountability & Privacy

In Reporters Committee, in FOIA setting, the Court defined the public interest as “shedding light on the conduct of any Government agency or official”, not acquiring information about a particular private citizen

“The fact that an event is not wholly private does not mean that an individual has no interest in limiting disclosure or dissemination of the information”

II. Federal Bankruptcy Study

Released January 19, 2001 Bankruptcy as a federal system Then pending proposal to put all bankruptcy records

on-line, with Internet access Sensitive data

– SSNs– Bank account numbers and balances– Credit card numbers– These are targets for thieves

Goals to Achieve

Fair and efficient administration of bankruptcy system

Needs of the parties in interest Accountability to the public Balance with privacy interests, especially

for sensitive information Fit with GLB and other relevant laws

Recommendation 1

Public access to core information Core information includes fact an individual

has filed, type of bankruptcy proceeding, identities of parties in interest

Recommendation 2

No general public access to sensitive information SSNs, credit card numbers, loan accounts, dates

of birth, bank account numbers Schedules should be removed from public record

that show detailed profiles of personal spending habits and debtors’ medical information

Care for non-filing spouses and others’ data

Recommendation 3 Parties in interest should have access to much

non-public information This is important for exercising their rights and

responsibilities However, general re-use and re-disclosure

limits for purposes unrelated to administering bankruptcy cases

E.g., don’t create database for resale gathered from parties in interest

Recommendation 4

Incorporate Fair Information Principles– Notice– Consent for unrelated uses

Data available, though, for certain government uses

– Access by the debtors – Data security and integrity– Accountability

IV. Other Law

Intersection with other law Protective orders

– Longstanding judicial practice, upon proper motion

– Trade secret cases– Many settlement agreements– Move from retail protective orders to more

wholesale approach for categories of cases?

Other law Gramm-Leach-Bliley Act of 1999

– Title V on financial privacy– Notice to individual of how financial records will be

handled– Opt-out choice by individual before it goes to 3rd

party– This same data can easily be disclosed in court

records– To what extent should courts disclose data that other

law says is private?

Other law

HIPAA medical privacy rule in force April, 2003

Sec. 512(d) -- judicial & administrative proceedings

Covered entities can only disclose medical records as permitted

1st option -- notice to the individual and opportunity to object

Other law -- HIPAA

2d option -- “qualified protective order”– Covered entity must seek agreement that the other

party will keep data confidential– Records used only for the proceeding– Must be returned or destroyed after that

HIPAA does not apply directly to courts But, strong national policy that privacy

protection should be built into judicial and administrative proceedings

V. Concluding Thoughts

There is no status quo Previous legal regime of substantial

openness Previous practical regime of obscurity and

lower privacy risk What will be the courts’ approach to

possibility that all court records easily searchable?

Some suggestions

The shift to electronic records, electronic filing, and Internet access is the natural time to examine these issues

Do a privacy impact assessment, or create a process, to create a better new system that meets all of the relevant goals

Consult with other courts Resources are listed in your materials

Concluding Thoughts

Should the price of filing for bankruptcy be disclosure of your current bank account?

Should the price of filing for disability be Internet access to your lifetime medical records?

What rules are appropriate for information about minors and non-parties?

Conclusion

These issues deserve your attention There are ways to build systems that

achieve accountability, effective administration and privacy.

It’s up to you to help build them.