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Bar News - July 23, 2004 Diverse Task Force to Develop Electronic Court Records Policy By: Dan Wise Balancing Public Access and Privacy Concerns A 60-MEMBER TASK Force, appointed by the judicial branch and chaired by Superior Court Associate Justice Larry M. Smukler, has begun meeting to develop a set of policies to govern electronic access to state court records. "We intend to hear all sides of this very complex issue so that we can arrive at a policy that is in the best interest of the citizens of New Hampshire while also recognizing the importance of public access to court records," Chief Justice John T. Broderick Jr. said in announcing the task force. The group held its first meeting on June 21 and will meet quarterly for the next year. The group’s steering committee, consisting of 12 members, will meet monthly to begin drafting the policies, using as a starting point a detailed series of guidelines for public access to court records that was developed in 2002 by the State Justice Institute on behalf of the Conference of Chief Justices and the Conference of State Court Administrators. "Rather than reinvent the wheel, we are going to be looking at those detailed guidelines as a template," said Judge Smukler, who also chairs the judicial branch’s Court Technology Committee. The records policy that is developed by the task force will be presented as recommendations to the New Hampshire Supreme Court, he added. In addition to court rulemaking, there might be aspects of the records policy that could require legislation. The task force includes judges and clerks from all levels of the courts, attorneys, lawmakers, and representatives from law enforcement, news media, academia, librarians, the private sector and the general public. The policy-making on records access is occurring at the same time that the court system has begun a multi-year, system-wide installation of Odyssey, a computerized case-management system that will establish a networked, centralized database that will allow the courts to share information and also facilitate 24/7 electronic access to court records. Smukler, who helped oversee the bid specifications and the selection of the case management system vendor, said that policy recommendations by the task force "will not be constrained by technology. Whatever public access policies the court decides to implement, this system will be able to handle," Smukler said. Although a model policy exists, Smukler acknowledges that the task force has major policy issues to address and competing interests to balance. On the one hand, some individuals and organizations believe that all information the courts collect in the case-management system should be presumed to be publicly accessible via the Internet, unless exceptions are made. Other groups, for whom privacy and safety issues are paramount, take the position that, especially in cases involving financial and family information, the presumption should be that certain categories of information cannot be electronically accessible even though it is public. Divorce case filings contain sensitive personal and financial information; a simple Internet search could turn up unrelated litigation records that could disclose to a stalker the present whereabouts of a domestic violence victim; business trade secrets could be revealed through court filings. There are also still some questions to be answered, such as: Will courts be allowed to provide bulk downloads of information to credit bureaus or private investigators? What will happen to minor criminal case information? Smukler said that one scenario might be that certain case information —such as, who has filed for divorce—would only be available at the courthouse. Without committing himself to a specific position, Smukler said such policies reflect an attempt to prevent certain records from being available to the "idly curious." Smukler said some of the key questions to be answered by policy-makers would be, what is a court record? And, should there be different levels of public access? One of the members of the task force is Rep. Neal Kurk, a Weare Republican who has introduced a number of bills in the legislature aimed at protecting privacy rights. (See related article). Kurk said the argument for keeping certain records private is a physical safety as well as an informational issue. He said that the model policy guidelines the task force is working with appear to take into account the need to balance the need for public access with privacy concerns by providing for limiting remote access to certain records while still allowing them to be public for those who come to the courthouse to look them up.  New software will put NH court records into cyberspace instead of locked file cabinets, opening up new means of access and new questions of privacy. Kurk colorfully summed up the interest that the work of the task force is likely to generate: "Any time you make honey, there will be bears around." The group’s recommendations will cover a vast array of information contained in court records. The task force has scheduled future meetings (open to the public) for Nov. 19, March 18, and June 17, to be held at the Administrative Office of the Courts in Concord. For more information, go to: COSCA/CCJ Model Access Policy at http://www.courtaccess.org/modelpolicy/. A four-part series on the issue of court records and public access as it pertains to New Hampshire’s courts was published last fall by The Associated Press and is posted, with special permission from AP Digital, for a limited time at www.nhbar.org. (Scroll down the page of "News Releases" to COURT ISSUES DISCUSSED) Also, to see a detailed commentary by the Reporters Committee on Freedom of the Press that is critical of the COSCA/CCJ guidelines, go to www.rcfp.org/news/documents/20020415modelctacc.html.
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