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Bar News - February 6, 2004 Open Courts & Technology ~ Part 3 By: Katharine Webster Associated Press Court Rulings On Access To Computerized Court Records Are Mixed Copyright 2003 By The Associated Press. All Rights Reserved. Originally published Tuesday, December 3, 2003. Posted until Feb. 1, 2005 with special permission from AP Digital. Two major legal questions confront courts deciding about electronic access to their records: whether there is a public right of access to computerized records in the first place, and whether privacy rights require that some information be kept offline. The answer to the first question is "No" under the federal constitution, according to the policy-making Judicial Conference of the United States. But the New Hampshire Constitution grants greater public access to court records, according to First Amendment and media lawyers. The state Supreme Court has upheld public access to court records in several cases, notably its 1992 Keene Sentinel ruling that said court records are presumed open unless a judge finds a compelling reason to seal them. Even then, the judge must seal as little as possible, blacking out Social Security numbers instead of sealing financial affidavits in a divorce, for example. The Sentinel had sued to unseal the divorce records of then-U.S. Rep. Charles Douglas, who was running for re-election. In 2001, the court ruled that state government records had to be maintained "in a manner that makes them available to the public." The ruling involved Cassandra Hawkins, who wanted to see whether the state was complying with federal Medicaid rules for providing dental care to poor children. The state argued the records were stored as bits of data, not documents, and compiling the information would require costly reprogramming. A lower court sided with the state, and The Associated Press joined Hawkins' appeal. The Supreme Court ruled the state was not required to compile computerized data in a specific format, but also said Hawkins was entitled to the records: "A Medicaid claim form does not lose its status as a public record simply because it is stored within a computer system." However, when court critic Theo Kamasinski tried five years ago to get the computerized dockets for all the superior courts, the courts turned him down. Court officials said confidential cases had not been "tagged" electronically, so they couldn't sort the confidential cases from the public ones. The courts said they had no obligation to remedy that. The high court and the Legislature have sometimes found that privacy interests outweigh the public's right of access to court records. Virtually all juvenile cases are confidential by law, as are grand jury proceedings and many types of Probate Court cases, such as adoption and guardianship proceedings. Recently, the court also said explicitly that Social Security numbers are confidential. "A party's Social Security identification number is of no particular public interest, and such information should be redacted to guard against any possible misuse," the court said in 2001. It reinforced that message in February in a lawsuit by Amy Boyer's family against an Internet information broker that provided her work address and Social Security number to the man who stalked and killed her. Douglas wants the protection written into state law, noting that a court recently released a financial affidavit of his without blacking out his Social Security number. Critics say the bill, pending before the Senate, is unconstitutional. But Douglas says it is common sense in an era when identity theft is rampant. "I'm talking about a widespread availability of information that offends the New Hampshire sense of privacy," he said. "When the courts go online, it will be even worse." On the Net:
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