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ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS

Notice of Proposed Public Access Policy Concerning Electronic Case Records of the Unified Judicial System

[35 Pa.B. 5097]

   The Administrative Office of Pennsylvania Courts is planning to recommend that the Supreme Court of Pennsylvania adopt this proposed public access policy concerning electronic case records of the Unified Judicial System. At my direction, an ad hoc committee of Administrative of Office of Pennsylvania Courts staff crafted this proposed policy that is being published for public comment.

   The proposed policy covers electronic case record information that would be accessible by the public, how public requests for access are to be handled, public access request fees, and other pertinent recommendations. The explanatory Report highlights the Committee's considerations in formulating this proposed policy. I request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through

David S. Price
Chair, Public Access Ad Hoc Committee
Administrative Office of Pennsylvania Courts
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055
Fax: (717) 795-2177
e-mail: publicaccesscomments@pacourts.us

   no later than Thursday, November 17th, 2005.

ZYGMONT A. PINES,   
Court Administrator of Pennsylvania

Proposed Electronic Case Record Public Access Policy of the Unified Judicial System of Pennsylvania

Section 1.00 Definitions

   A.  ''CPCMS'' means the Common Pleas Criminal Court Case Management System.

   B.  ''Custodian'' is the person, or designee, responsible for the safekeeping of electronic case records held by any court or office and for processing public requests for access to electronic case records.

   C.  ''Electronic Case Record'' means information or data created, collected, received, produced or maintained by a court or office in connection with a particular case that exists in the PACMS, CPCMS, or MDJS. Documents produced from the PACMS, CPCMS, and/or MDJS that concern a single case, except for web docket sheets, do not fall within this definition.

   D.  ''MDJS'' means the Magisterial District Judge Automated System.

   E.  ''Office'' is any entity that is using one of the following automated systems: Pennsylvania Appellate Court Case Management System (PACMS); Common Pleas Criminal Court Case Management System (CPCMS); or Magisterial District Judge Automated System (MDJS).

   F.  ''PACMS'' means the Pennsylvania Appellate Court Case Management System.

   G.  ''Public'' includes any person, business, non-profit entity, organization or association.

   ''Public'' does not include:

   1.  Unified Judicial System officials or employees, including employees of the office of the clerk of courts, prothonotary, and any other office performing similar functions;

   2.  people or entities, private or governmental, who assist the Unified Judicial System or related offices in providing court services; and

   3.  any federal, state, or local governmental agency or an employee or official of such an agency when acting in his/her official capacity.

   H.  ''Public Access'' means that the public may inspect and obtain electronic case record(s), except as provided by law or as set forth in this policy.

   I.  ''Public Terminal'' means a computer terminal that may be located within the courthouse to provide the public with access to electronic case record information.

   J.  ''Request for Bulk Distribution of Electronic Case Records'' means any request, regardless of the format the information is requested to be received in, for all or a significant subset of electronic case records, as is and without modification or compilation.

   K.  ''Request for Compiled Information From Electronic Case Records'' means any request, regardless of the format the information is requested to be received in, for information that is derived from the selection, aggregation, and/or manipulation by the court, office or record custodian of information from more than one individual electronic case record, which is not already available in an existing report.

   L.  ''UJS'' means the Unified Judicial System of Pennsylvania.

Section 2.00 Statement of General Policy

   A.  This Policy covers all electronic case records.

   B.  The public may inspect and obtain electronic case records except as provided by law or as set forth in this policy.

   C.  A court or office may not adopt for electronic case records a more restrictive access policy or provide greater access than that provided for in this policy.

Section 3.00 Electronic Case Record Information Excluded from Public Access

   A.  The following information in an electronic case record is not accessible by the public:

   1.  social security numbers;

   2.  operator license numbers;

   3.  victim information;

   4.  informant information;

   5.  juror information;

   6.  a party's street address, except the city, state, and ZIP code may be released;

   7.  dates of birth, except the year of birth and age may be released;

   8.  witness information;

   9.  SID (state identification) numbers;

   10.  financial institution account numbers and credit card numbers;

   11.  notes, drafts, and work products related to court administration or any office that is the primary custodian of an electronic case record;

   12.  arrest and search warrants and supporting affidavits retained by judges, clerks, or other court personnel until execution of the warrant;

   13.  information sealed or protected pursuant to court order; and

   14.  information to which access is otherwise restricted by federal law, state law, or state court rule.

   B.  Notwithstanding subsection A, electronic case records concerning a single case that are accessible at the courthouse via a public terminal may include a party's full date of birth and full address in addition to all other information that is deemed accessible under this policy.

Section 3.10 Requests for Bulk Distribution of Electronic Case Records and Compiled Information from Electronic Case Records

   A.  A request for bulk distribution of electronic case records and/or compiled information from electronic case records shall be permitted for data that is not excluded from public access as set forth in this Policy.

   B.  A request for bulk distribution of electronic case records and/or compiled information from electronic case records not publicly accessible under Section 3.00 of this Policy, may be fulfilled where: the release of the information will not permit the identification of specific individuals; the release of the information will not present a risk to personal security or privacy; and the information is being requested for a scholarly, journalistic, governmental-related, research or case preparation purpose.

   1.  Requests of this type will be reviewed on a case-by-case basis.

   2.  In addition to the request form, the requestor shall submit in writing:

   (a)  the purpose/reason for the request;

   (b)  identify what information is sought; and

   (c)  explain provisions for the secure protection of all data that is considered not accessible to the public.

   3.  If this type of request is granted, the requestor must sign a declaration that:

   (a)  the information/data will not be sold or otherwise distributed, directly or indirectly, to third parties except for the stated purposes;

   (b)  the information/data will not be used, directly or indirectly, to sell a product or service to an individual or the general public, except for the stated purposes; and

   (c)  no copying or duplication of the information/data provided will occur other than for the stated purposes.

Section 3.20 Requests for Electronic Case Record Information from Another Court or Office

   Any request for electronic case record information from another court should be referred to the proper record custodian in the court or office where the electronic case record information originated. Any request for electronic case record information concerning multiple magisterial district judge courts or multiple judicial districts should be referred to the Administrative Office of the Pennsylvania Courts.

Section 4.00 Responding to a Request for Access to Electronic Case Records

   A.  Within ten (10) business days of receipt of a written request for electronic case record access, the respective court or office shall respond in one of the following manners:

   1.  fulfill the request, or if there are applicable fees and costs that must be paid by the requestor, notify requestor that the information is available upon payment of the same;

   2.  notify the requestor in writing that the requestor has not complied with the provisions of this Policy;

   3.  notify the requestor in writing that the information cannot be provided; or

   4.  notify the requestor in writing that the request has been received and the expected date that the information will be available. If the information will not be available within thirty (30) business days, the court or office shall notify the Administrative Office of Pennsylvania Courts and the requestor simultaneously.

   B.  If the court or office cannot respond to the request as set forth in subsection A, the court or office shall concurrently give written notice of the same to the requestor and the Administrative Office of the Pennsylvania Courts.

Section 5.00 Fees

   A.  Reasonable fees may be imposed for providing public access to electronic case records pursuant to this policy.

   B.  A fee schedule shall be in writing and publicly posted.

   C.  A fee schedule in any judicial district, including any changes thereto, shall not become effective and enforceable until:

   1.  a copy of the proposed fee schedule is submitted by the president judge to the Administrative Office of Pennsylvania Courts; and

   2.  the Administrative Office of the Pennsylvania Courts has approved the proposed fee schedule.

Section 6.00 Correcting Data Errors

   Any party to a case or his/her attorney seeking to correct a data error or omission in an electronic case record should contact the court or office in which the original record was filed.

Section 7.00 Continuous Availability of Policy

   A copy of this policy shall be continuously available for public access in every court or office that is using the PACMS, CPCMS, and/or MDJS.

EXPLANATORY REPORT

Proposed Electronic Case record Public Access Policy of the Unified Judicial System of Pennsylvania

Introduction

   With the statewide implementation of the Common Pleas Criminal Court Case Management System (CPCMS) in process, the Administrative Office of the Pennsylvania Courts (AOPC) faced the complicated task of developing a uniform public access policy to criminal case records for Pennsylvania's Unified Judicial System (UJS). Public access to case records is a subject well known to the AOPC. Specifically, the AOPC has been providing information to the public from the judiciary's Magisterial District Judge Automated System (MDJS) pursuant to a public access policy covering MDJS records since 1994.1 For over a decade now, the AOPC has endeavored to provide accurate and timely MDJS information to requestors without fail.

   Like many other state court systems as well as the federal courts, Pennsylvania is confronted with the complex issues associated with public access to case records. Should information found in court files be completely open to public inspection? Or do privacy and/or personal security concerns dictate that some of this information be protected from public view? How is the balance struck between the benefits associated with publicly accessible court data and the threat of harm to privacy and personal security? Should paper case records and electronic case records be treated identically for public access purposes? Does aggregation of data present any special concerns or issues? The above mentioned issues are a mere sampling of the many serious, and often competing, factors that were weighed in the development of this policy.

   Through an ad hoc committee (''Committee'') appointed by the Court Administrator of Pennsylvania, the AOPC crafted a public access policy covering case records. A summary of the administrative, legal, and public policy considerations that guided the design of the policy provisions follows herewith.

Administrative Scope of the Public Access Policy Governing Case Records

   First and foremost, the Committee was charged with determining the scope of this public access policy. After extensive discussions, the Committee reached agreement that at present the public access policy should cover electronic case records as defined in the policy.2

   Concerning paper case record information, the Committee first noted that if this policy was applicable to all paper case records then each document that is contained in the court's paper file would have to be carefully scrutinized and possibly redacted pursuant to the policy provisions before it could be released to the public. Depending on individual court resources, such a policy may have caused delays in fulfilling public access requests to case records, resulted in the inadvertent release of non-public information, or impeded the business of a filing office or court responsible for the task of review and redaction.3

   The Committee is hopeful, however, that the information contained in paper case records concerning a single case will continue to enjoy an acceptable level of protection provided by ''practical obscurity,'' a concept that the U.S. Supreme Court spoke of in United States Department of Justice v. Reporters Committee for Freedom of the Press.4 This notion of practical obscurity centers on the effort required to peruse the paper case file for detailed information at the courthouse in person, as opposed to obtaining it instantaneously by a click of the computer mouse.

   At the heart of this issue is the question of whether access to paper records and electronic records should be the same. The Committee researched how other state court systems are addressing this issue. It appears that two distinct schools of thought have emerged. One school (represented by the New York5 and Vermont6 court systems) believes records should be treated the same and the goal is to protect certain information regardless of what form (paper or electronic) that information is in. The other school of thought (represented by the Massachusetts7 and Minnesota8 court systems) believes there is a difference between maintaining ''public'' records for viewing/copying at the courthouse and ''publishing'' records on the Internet.

   The Committee further narrowed the scope of the public access policy concerning electronic case records by covering only those records that are created and maintained by one of the UJS' automated case management systems, as opposed to any and all electronic case records created and maintained by courts within the UJS. The Committee is aware that some judicial districts currently have civil automated case management systems in place, but the scope and design of those systems is as different as the number of judicial districts employing them. Crafting a single policy that would take into account the wide differences among those systems led to the decision to limit the scope to the PACMS, CPCMS and MDJS.

Legal Authority Pertinent to the Proposed Public Access Policy Governing Electronic Case Records

   Article V, Section 10(c) of the Pennsylvania Constitution vests the Supreme Court with the authority to, inter alia, prescribe rules governing practice, procedure and the conduct of all courts. Section 10(c) extends these powers to the administration of all courts and supervision of all officers of the Judicial Branch. Rule of Judicial Administration 505(11) charges the AOPC with the supervision of ''all administrative matters relating to the offices of the prothonotaries and clerks of court and other system and related personnel engaged in clerical functions, including the institution of such uniform procedures, indexes and dockets as may be approved by the Supreme Court.'' Rule of Judicial Administration 501(a) provides in part that ''[t]he Court Administrator [of Pennsylvania] shall be responsible for the prompt and proper disposition of the business of all courts . . . .'' Rule of Judicial Administration 504(b) sets forth that ''the Court Administrator shall . . . exercise the powers necessary for the administration of the system and related personnel and the administration of the Judicial Branch and the unified judicial system.'' In addition, Rule of Judicial Administration 506(a) provides that ''[a]ll system and related personnel shall comply with all standing and special requests or directives made by the [AOPC] for information and statistical data relative to the work of the system and of the offices related to and serving the system and relative to the expenditure of public monies for their maintenance and operation.''

   Moreover, 42 Pa.C.S. § 4301(b) provides in part that ''Supervision by Administrative Office--all system and related personnel engaged in clerical functions shall establish and maintain all dockets, indices and other records and make and file such entries and reports, at such times, in such manner and pursuant to such procedures and standards as may be prescribed by the Administrative Office of Pennsylvania Courts with the approval of the governing authority.'' 42 Pa.C.S. § 102 provides that system and related personnel of our Unified Judicial System is defined as including but not limited to clerks of courts and prothonotaries. Under the auspices of the aforementioned legal authority, this proposed policy was created.

   As part of its preparations to devise provisions governing access to electronic case records, the Committee researched and reviewed the applicable body of law concerning the public's right to access case records and countervailing interests in personal privacy and security.

Common Law Right to Access

   A general common law right to inspect and copy public judicial records and documents exists. And while this common law right to access has been broadly construed, the right is not absolute. In determining whether this common law right to access is applicable to a specific document, a court must consider two questions.9

   The threshold question is whether the document sought to be disclosed constitutes a public judicial document.10 Not all documents connected with judicial proceedings are public judicial documents.11 If a court determines that a document is a public judicial document, the document is presumed open to public inspection and copying. This presumption of openness may be overcome by circumstances warranting closure of the document. Therefore, the second question a court must address is whether such circumstances exist and outweigh the presumption of openness.12

   Circumstances that courts have considered as outweighing the presumption of openness and warranting the closure of documents include: (a) the protection of trade secrets;13 (b) the protection of the privacy and reputations of innocent parties;14 (c) guarding against risks to national security interests;15 (d) minimizing the danger of unfair trial by adverse publicity;16 (e) the need of the prosecution to protect the safety of informants;17 (f) the necessity of preserving the integrity of ongoing criminal investigations;18 and (g) the availability of reasonable alternative means to protect the interests threatened by disclosure.19

   These type of considerations have been found to outweigh the common law right to access with respect to the following records: transcript of bench conferences held in camera;20 working notes maintained by the prosecutor and defense counsel at trial;21 a brief written by the district attorney and presented only to the court and the defense attorney but not filed with the court nor made part of the certified record of appeal;22 and private documents collected during discovery as well as pretrial dispositions and interrogatories.23

   On the other hand, examples of records wherein the common law right to access has prevailed include arrest warrant affidavits;24 written bids submitted to the federal district court for the purpose of selecting lead counsel to represent plaintiffs in securities litigation class action;25 search warrants and supporting affidavits;26 a transcript of jury voir dire;27 pleadings and settlement agreements.28

Federal Constitutional Right to Access

   The United States Supreme Court has recognized a First Amendment right of access to most, but not all, court proceedings and documents.29 To determine if a First Amendment right attaches to a particular proceeding or document, a two prong inquiry known as the ''experience and logic test'' must guide the decision to allow access or prohibit it. The ''experience'' prong involves consideration of whether the place and process have historically been open to the press and general public.30 The ''logic'' prong involves consideration of ''whether public access plays a significant positive role in the functioning of the particular process in question.''31

   With respect to the ''logic'' test, courts have looked to the following societal interests advanced by open court proceedings:

   (1)  promotion of informed discussion of governmental affairs by providing the public with a more complete understanding of the judicial system;

   (2)  promotion of the public perception of fairness which can be achieved only by permitting full public view of the proceedings;

   (3)  providing a significant community therapeutic value as an outlet for community concern, hostility, and emotion;

   (4)  serving as a check on corrupt practices by exposing the judicial process to public scrutiny;

   (5)  enhancement of the performance of all involved; and

   (6)  discouragement of perjury.32

   If the court finds that a First Amendment right does attach to a proceeding or document, there is not an absolute right to access. Rather, the court may close a proceeding or document if closure is justified by overriding principles. For instance, in criminal cases, closure can occur if it serves a compelling government interest and, absent limited restrictions upon the right to access to the proceeding or document, other interests would be substantially and demonstrably impaired.33 For example, a court may be able to withhold the release of the transcript of the jury voir dire until after the verdict is announced if in the court's opinion it was necessary to protect the jury from outside influences during its deliberations.34

   Examples of proceedings or documents in which the courts have found a First Amendment right to access include: the voir dire examination of potential jurors,35 preliminary hearings,36 and post trial examination of jurors for potential misconduct.37

   Examples of proceedings or documents wherein the courts have not found a First Amendment right to access include: a motion for contempt against a United States Attorney for leaking secret grand jury information,38 sentencing memorandum and briefs filed that contained grand jury information,39 and pretrial discovery materials.40

   The defendant's Sixth Amendment right to a public trial may also warrant closure of judicial documents and proceedings; however, this right is implicated when the defendant objects to a proceeding being closed to the public. Courts have held that a proceeding can be closed even if the defendant does object, for the presumption of openness may be overcome by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.41

Pennsylvania Constitutional Right to Access

   The Pennsylvania Supreme Court has established that courts shall be open by virtue of provisions in the Pennsylvania Constitution. Specifically, this constitutional mandate is found in Article I, § 9 which provides in part that ''[i]n all criminal prosecutions the accused hath a right to . . . a speedy public trial by an impartial jury of the vicinage[,]'' and Article I, § 11 which provides in part that ''[a]ll courts shall be open . . . .''42 Specifically, in Fenstermaker, the Court held that

[t]he historical basis for public trials and the interests which are protected by provisions such as Pennsylvania's open trial mandate have been well researched and discussed in two recent opinions of the United States Supreme Court, Gannett Co. v. DePasquale, [citation omitted] and Richmond Newspapers, Inc. v. Virginia, [citation omitted] and can be briefly summarized as follows: generally, to assure the public that justice is done even-handedly and fairly; to discourage perjury and the misconduct of participants; to prevent decisions based on secret bias or partiality; to prevent individuals from feeling that the law should be taken into the hands of private citizens; to satisfy the natural desire to see justice done; to provide for community catharsis; to promote public confidence in government and assurance that the system of judicial remedy does in fact work; to promote the stability of government by allowing access to its workings, thus assuring citizens that government and the courts are worthy of their continued loyalty and support; to promote an understanding of our system of government and courts.
These considerations, which were applied by the United States Supreme Court in its analysis of the First and Sixth Amendments [of the United States Constitution] in Gannett and Richmond Newspapers apply equally to our analysis of Pennsylvania's constitutional mandate that courts shall be open and that an accused shall have the right to a public trial.43

   With regard to the right to a public trial, the Court has held that in determining whether a court's action has violated a defendant's right to a public trial, a court must keep in mind that such a right serves two general purposes: ''(1) to prevent an accused from being subject to a star chamber proceeding;44 and (2) to assure the public that standards of fairness are being observed.''45 Moreover, the right to a public trial is not absolute; rather, ''it must be considered in relationship to other important interests . . . [such as] the orderly administration of justice, the protection of youthful spectators and the protection of a witness from embarrassment or emotional disturbance.''46 If a court determines that the public should be excluded from a proceeding, the exclusion order ''must be fashioned to effectuate protection of the important interest without unduly infringing upon the accused's right to a public trial either through its scope or duration.''47

   With regard to the constitutional mandate that courts shall be open, ''[p]ublic trials, so deeply ingrained in our jurisprudence, are mandated by Article I, Section 11 of the Constitution of this Commonwealth [and further that] public trials include public records [emphasis added].''48 Courts in analyzing Section 11 issues have held that there is a presumption of openness which may be rebutted by a claim that the denial of public access serves an important government interest and there is no less restrictive way to serve that government interest. Under this analysis, ''it must be established that the material is the kind of information that the courts will protect and that there is good cause for the order to issue.''49 For example, a violation of Section 11 was found when a court closed an inmate/defendant's preliminary hearing to the public under the pretense of ''vague'' security concerns.50

   In at least one case, the Court set forth in a footnote that Article 1, § 7 is a basis for public access to court records.51 Section 7 provides in part that ''[t]he printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government and no law shall ever be made to restrain the right thereof.''

Legislation Addressing Public Access to Government Records

   The Freedom of Information Act (FOIA), codified in Title 5 § 552 of the United States Code, was enacted in 1966 and generally provides that any person has the right to request access to federal agency records or information. All agencies of the executive branch of the United States government are required to disclose records upon receiving a written request for them, except for those records (or portions of them) that are protected from disclosure by the nine exemptions and three exclusions of the FOIA. This right of access is enforceable in court. The FOIA does not, however, provide access to records held by state or local government agencies, or by private businesses or individuals.52

   The Privacy Act of 197453 is a companion to the FOIA. The Privacy Act regulates federal government agency record-keeping and disclosure practices and allows most individuals to seek access to federal agency records about themselves. The Act requires that personal information in agency files be accurate, complete, relevant, and timely. The subject of a record may challenge the accuracy of information. The Act requires that agencies obtain information directly from the subject of the record and that information gathered for one purpose is not to be used for another purpose. Similar to the FOIA, the Act provides civil remedies for individuals whose rights may have been violated. Moreover, the Act restricts the collection, use and disclosure of personally identifiable information (e.g., social security numbers) by federal agencies.54

   Pennsylvania's Right to Know Act55 (RTKA) gives Pennsylvanians the right to inspect and copy certain executive branch records. The RTKA was originally enacted in 1957 but was substantially amended by Act 100 of 2002. Records that are available under the RTKA include ''any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons.''56 However, records that are not available under the RTKA include:

any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, except those reports filed by agencies pertaining to safety and health in industrial plants; any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person's reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, except the record of any conviction for any criminal act [emphasis added].57

   While these federal and state laws are not applicable to court records, the Committee consulted these statutory provisions in drafting the policy.

Other Court Systems' Approaches Concerning Public Access to Electronic Case Records

   The Committee looked to the policies, whether adopted or proposed by rule or statute or otherwise, of other court systems (federal and state) for guidance and in doing so found a wide variety of practices and approaches to public access. Not surprisingly, the process of putting court records online has produced remarkably disparate results. Courts have made records available in many forms ranging from statewide access systems to individual jurisdictions providing access to their records. Some court systems provide access to both criminal and civil records, while others make distinctions between the treatment of those types of records or restrict users' access to records that may contain sensitive personal information. As noted previously, some states distinguish between electronic and paper records, while others do not.

   In particular, the Committee reviewed the policies (whether proposed or fully adopted) of: the Judicial Conference Committee on Court Administration and Case Management (including the Report of the Federal Judicial Center entitled Remote Public Access to Electronic Criminal Case Records: A Report on a Pilot Project in Eleven Federal Courts), the U.S. District Court for the Eastern District of Pennsylvania and the Southern District of California, Alaska, Arizona, California, Colorado, Florida, Georgia, Indiana, Idaho, Maryland, Massachusetts, Minnesota, Missouri, New York, North Carolina, Washington, Utah, and Vermont.

   Additionally, the Committee closely reviewed the materials disseminated by the National Center for State Courts (NCSC) project titled ''Developing a Model Written Policy Governing Access to Court Records.'' Perhaps as an indication of the difficulties inherent in drafting policy provisions to govern public access to court records in a single jurisdiction (let alone nationwide), the NCSC project shifted its focus from developing a model policy to guidelines for local policymaking.58 The final report of this NCSC project was entitled ''Developing CCJ/COSCA Guidelines for Public Access to Court Records: A National Project to Assist State Courts'' (CCJ/COSCA Guidelines). As noted in the title, the CCJ/COSCA Guidelines were adopted by the Conference of Chief Justices and the Conference of State Court Administrators.

   As it wrestled with and attempted to appropriately balance the thorny issues and significant challenges associated with the development and implementation of a statewide access policy, the Committee was grateful for the insight and thought-provoking discussions these policies engendered.

Policy Perspectives Weighed in Devising the Public Access Policy Governing Electronic Case Records

   Increasingly in today's society, the courts are witness to the tension between the importance of fully accessible electronic case records and the protection of an individual's privacy and personal security. The two important, but at times seemingly incompatible, interests are perhaps better categorized as the interest in transparency (i.e., opening judicial branch processes to public scrutiny) and the competing interests of personal privacy and personal security.

   Case records capture a great deal of sensitive, personal information about litigants and third parties (e.g., witness, jurors) who come in contact with the courts. The tension between transparency and personal privacy/security of case records has been heightened by the rapidly increasing use of the Internet as a source of data, enhanced automated court case management systems, and other technological realities of the Information Age.

   Prior to the widespread use of computers and search engines, case record information was accessible by traveling to the local courthouse and perusing the paper files, presumably one at a time. Thus, most information contained in the court records enjoyed ''practical obscurity.'' In the latter part of the twentieth century, the proliferation of computerized case records was realized. As a result, entire record systems are swept by private organizations within seconds and data from millions of records are compiled into enormous record databases, accessible by government agencies and the public.59

   Cognizant of today's technological realities, the Committee explored the inherent tension between the transparency of case records and the interest in personal privacy and security to more clearly understand the values associated with each.

The Values of Transparency

   The values of transparency can been described as serving four essential functions: 1) shedding light on judicial activities and proceedings; 2) uncovering information about public officials and candidates for public office; 3) facilitating certain social transactions; and 4) revealing information about individuals for a variety of purposes.60

   With regard to access to electronic case records, the Committee focused primarily on the first function of transparency, which aids the public in understanding how the judicial system works and promotes public confidence in its operations. Open electronic case records ''allows the citizenry to monitor the functioning of our courts, thereby insuring quality, honesty, and respect for our legal system.''61 Transparent electronic case records allow the public to assess the competency of the courts in resolving cases and controversies that affect society at large, such as product liability, medical malpractice or domestic violence litigation.62 Information that alerts the public to danger or might help prove responsibility for injuries should be available, as should that which enables the public to evaluate the performance of courts and government officials, the electoral process and powerful private organizations.63

   The key to assessing the complete release of electronic case record data appears to hinge upon whether there is a legitimate public interest at stake or whether release is sought for ''mere curiosity.''64 While this measure has been applied to analysis of the propriety of sealing individual court records, it should apply by extension to the broader subject of public access to electronic case record information. Analysis of whether release of electronic case record information satisfies a legitimate public interest should center on whether the effect would be to serve one of the four essential functions of transparency. Any other basis for release might serve to undermine the public's trust and confidence in the judiciary.

   The values inherent in the transparency of electronic case records are the root of the ''presumption of openness'' jurisprudence. The Committee gave that presumption due consideration throughout its undertaking.

Privacy and Personal Security Concerns Regarding the Release of Electronic Case Records

   The Committee debated at length as to where the line is drawn between transparency and privacy/personal security. Unfortunately, no legal authority exists that provides a ''bright line'' rule. Moreover, given that our society continues to witness and adopt new technology at a fast pace, the Committee worked to identify the privacy and personal security concerns that the release of electronic case record information triggers.

   According to a national survey conducted a decade ago, nearly 80% of those polled were concerned or very concerned about the threat to their privacy due to the increasing use of computerized records.65 Concerns about advances in information technology have resulted in greater public support for legislative protection of confidential information.66 The Committee noted that the last two legislative sessions of the Pennsylvania General Assembly have resulted in the introduction of more than forty bills that seek to restrict access to private and/or personal information.

   Case records contain considerable amounts of sensitive personal information, such as social security numbers, financial information, home addresses, and the like. This information is collected not only with respect to the litigants but others involved in cases, such as witnesses and jurors. The threat to privacy is realized in the assembling of individual ''dossiers'' which can track the private details of one's life, including spending habits, credit history, and purchases.67

   Personal security issues arise from the ease with which sensitive data can usually be obtained. The threat of harm can either be physical or financial. By accessing home address information, individuals may be the subject of stalking or harassment that threatens their physical person.68 Financial harm is documented by the fastest growing consumer fraud crime in the United States--identity theft. ''According to CBS News, approximately every 79 seconds an identity thief steals someone's identity, opens an account in the victim's name and goes on a buying spree.''69 The United States Federal Trade Commission reports that 10.1 million consumers have been victims of identity theft in 2003.70 In addition, a recent study by the financial industry reveals that 9.3 million people were victims of the crime of identity theft in 2004.71 The U.S. Department of Justice estimates that identity bandits may victimize up to 700,000 Americans per year.72 In Eastern Pennsylvania, a regional identity theft task force was established to aid federal, state and local authorities to curb the growing incidence of identity theft.73

   Recent newspaper accounts have recorded that the personal information of hundreds of thousands of individuals has been accessed by unauthorized individuals--raising the realistic concern of the possibility of widespread identity theft. Commercial entities--specifically Choicepoint and LexisNexis--have collectively released the personal information of 445,000 people to unauthorized individuals.74 The University of California-Berkeley reported the theft of a laptop computer that contained the dates of birth, addresses, and social security numbers of 98,369 individuals who applied to or attended the school.75 Boston College alerted 120,000 alumni that computers containing their addresses and social security numbers were hacked by an unknown intruder.76 A medical group in San Jose California reported the theft of computers that contained the information of 185,000 current and past patients.77

Conclusion

   After a thorough evaluation of the legal authority and public policy issues attendant to public access of electronic case record information, the Committee devised a balancing test for evaluating the release of electronic case record information. And while a perfect balance cannot be struck between transparency and personal privacy/security, the Committee attempted to reach a reasonable accommodation protective of both interests.

   In determining whether electronic case record information should be accessible by the public, the Committee evaluated first whether there was a legitimate public interest in release of the information. If such an interest was not found, the inquiry ended and the information was not released.

   If such an interest was found, the Committee next assessed whether the release of this information would cause an unjustified invasion of personal privacy or presented a risk to personal security.

   If the answer to this inquiry was no, the information was released. If the answer was yes, the Committee weighed the unjustified invasion of personal privacy or risk to personal security against the public benefit in releasing the information.

Section 1.00 Definitions

   A.  ''CPCMS'' means the Common Pleas Criminal Court Case Management System.

   B.  ''Custodian'' is the person, or designee, responsible for the safekeeping of electronic case records held by any court or office and for processing public requests for access to case records.

   C.  ''Electronic Case Record'' means information or data created, collected, received, produced or maintained by a court or office in connection with a particular case that exists in the PACMS, CPCMS, or MDJS. Documents produced from the PACMS, CPCMS, and/or MDJS that concern a single case, except for web docket sheets, do not fall within this definition.

   D.  ''MDJS'' means the Magisterial District Judge Automated System.

   E.  ''Office'' is any entity that is using one of the following automated systems: Pennsylvania Appellate Court Case Management System (PACMS); Common Pleas Criminal Court Case Management System (CPCMS); or Magisterial District Judge Automated System (MDJS).

   F.  ''PACMS'' means the Pennsylvania Appellate Court Case Management System.

   G.  ''Public'' includes any person, business, non-profit entity, organization or association.

   ''Public'' does not include:

   1.  Unified Judicial System officials or employees, including employees of the office of the clerk of courts, prothonotary, and any other office performing similar functions;

   2.  people or entities, private or governmental, who assist the Unified Judicial System or related offices in providing court services; and

   3.  any federal, state, or local governmental agency or an employee or official of such an agency when acting in his/her official capacity.

   H.  ''Public Access'' means that the public may inspect and obtain electronic case record(s), except as provided by law or as set forth in this policy.

   I.  ''Public Terminal'' means a computer terminal that may be located within the courthouse to provide the public with access to electronic case record information.

   J.  ''Request for Bulk Distribution of Electronic Case Records'' means any request, regardless of the format the information is requested to be received in, for all or a significant subset of electronic case records, as is and without modification or compilation.

   K.  ''Request for Compiled Information From Electronic Case Records'' means any request, regardless of the format the information is requested to be received in, for information that is derived from the selection, aggregation, and/or manipulation by the court, office or record custodian of information from more than one individual electronic case record, which is not already available in an existing report.

   L.  ''UJS'' means the Unified Judicial System of Pennsylvania.

Commentary

   In adopting the definitions to the above terms, the Committee considered Pennsylvania law, other states' laws and public access policies, and the CCJ/COSCA Guidelines. In most cases, the definitions that the Committee chose to adopt are found in one of the above-mentioned sources. The following list sets forth the source for each of the above definitions.

   Subsection B, Custodian, is derived from Arizona's definition of custodian which is the ''person responsible for the safekeeping of any records held by any court, administrative office, clerk of court's office or that person's designee who also shall be responsible for processing public requests for access to records.''78 To ensure that this definition would encompass any court or office that is the primary custodian of electronic case records the Committee chose to replace the phrase ''any court, administrative office, clerk of court's office'' with ''any court or office.''

   Subsection C, Electronic Case Record, the Committee opines it is necessary to set forth a term for those records that exist within one of the UJS' automated case management systems (PACMS, CPCMS, or MDJS). This definition is derived from Minnesota's definition of ''case record.''79 Nonetheless, this definition includes paper documents produced from the UJS' automated case management systems in response to requests for compiled information from electronic case records and requests for bulk distribution of electronic case records.

   Subsection E, Office, is a Committee-created term. The Committee wanted to ensure that the Policy applies only to the office that is the primary custodian of an electronic case record, regardless of the title of the office. The Committee also wanted to avoid creating an obligation on the part of an office that possessed only a copy of a record to provide access to a requestor.

   Subsection G, Public, is a variation of a provision in the CCJ/COSCA Guidelines.80 The most significant difference is that the CCJ/COSCA Guidelines provide for two additional classes of individuals and/or entities that are included in the definition of ''public.'' The first class is ''any governmental agency for which there is no existing policy defining the agency's access to court records.''81 In the Committee's judgment, all government requestors should be treated differently than non-government requestors. Thus, the Committee chose not to adopt this statement, as further explained below.

   The second class is ''entities that gather and disseminate information for whatever reason, regardless of whether it is done with the intent of making a profit, and without distinction as to nature or extent of access.''82 The Committee opines that any person or entity that falls within this category would also fall within our definition of the public. Therefore, this statement was thought to be redundant.

   In the judgment of the Committee every member of the public should be treated equally when requesting access to electronic case records. The Policy creates three categories of individuals and entities that do not fall within the definition of the ''public;'' thus, the Policy's provisions are not applicable to them. Specifically, these three categories are (1) court employees, (2) those who assist the courts in providing court services (e.g., contractors), and (3) governmental agencies.

   With regard to court employees and those who assist the courts in providing court services (e.g., contractors), the Committee asserts that they should also have as much access to electronic case records as needed to perform their assigned duties and tasks.

   With regard to requests from governmental agencies, the Committee noted that AOPC s practice when responding to government requests for MDJS information has been to place few restrictions on fulfilling said requests. AOPC has provided to governmental agencies the following information: social security numbers, driver license numbers, dates of birth, and many other pieces of sensitive information that MDJS Policy prohibits access to by public (non-government) requestors. The Committee considers this to be consistent with the approach taken by other branches of Pennsylvania's government. Specifically, the RTKA provides that a requestor is defined as ''a person who is a resident of the Commonwealth and requests a record pursuant to this act.''83 Thus, it appears that the intent of the RTKA is for it to be only applicable to public (non-governmental) requestors.

   Although the Committee is aware that the RTKA does exclude non-residents of Pennsylvania,84 it sees no reason to limit the definition of public to exclude non-residents of the Commonwealth (for example, an executor in New York asking for court records concerning a Pennsylvania resident in order to settle an estate).

   The Committee also noted that the CCJ/COSCA Guidelines provide that the policy ''applies to governmental agencies and their staff where there is no existing law specifying access to court records for that agency, for example a health department . . . . If there are applicable access rules, those rules apply.''85 Thus, the CCJ/COSCA Guidelines provide that unless there is specific legal authority governing the release of court records to a particular governmental agency, the governmental agency should be considered a member of the public for the purposes of access to information.

   The Committee maintains that limitations upon the information provided to public requestors is a result of a balance struck between providing access to public information, and protecting the privacy and safety of the individuals whose information the courts and related offices possess. With regard to governmental entities, no such balance needs to be struck in that providing access to restricted information to another governmental agency does not presumably endanger individuals' safety or privacy. To ensure that the requests are for legitimate governmental reasons, all government requestors should be required to complete a government request form, a separate form from that used by public requestors. This government request form should require the requestor to state the reason for request, in contrast to the public request form, which should not. The justification for requiring more information about governmental requests lies with the much greater access afforded to governmental entities. However, information pertaining to these requests and the court's response to the same should not be accessible to the public.

   However, while in the Committee's judgment government requestors should be provided with greater access to information, there are some pieces of information that absolutely should not be released--for example, information sealed or protected pursuant to court order. Therefore, the Committee recommends that government requestors continue to be provided with greater access to information than public requestors, but such access should not be completely unrestricted.

   Lastly, the Committee decided with regard to foreign government requestors that if a foreign government is permitted access pursuant to law, then access will be provided.

   When the Committee was considering whether to include or exclude litigants and their attorneys in the definition of the ''public,'' the Committee noted that the current MDJS practice is to treat litigants and their attorneys the same as non-litigants or non-attorneys. However, it is noted that the CCJ/COSCA Guidelines provides that the parties to a case and their attorneys do not fall within the definition of the term ''public.''86 Therefore, in the CCJ/COSCA Guidelines, they will have nearly unrestricted access to the electronic case records, whereas the public's access will be restricted.

   Subsection H, Public Access, is a Committee created term because the Committee was unable to find an existing definition that was deemed adequate.

Subsection I, Public Terminal, is a Committee-created term.

   Subsection J, Request for Bulk Distribution of Electronic Case Records, is derived from the CCJ/COSCA Guidelines.87 This definition includes all requests regardless of the format the requestors want to receive the information in (i.e., paper, electronic, etc.). It appears that this is a term of art that is commonly used nationwide.88

   Subsection K, Request for Compiled Information From Electronic Case Records, is loosely derived from the definition that appears in the CCJ/COSCA Guidelines.89 In addition to other changes, the Committee replaced the word ''reformulation'' with ''manipulation'' which it considers to be more encompassing. This definition includes all requests regardless of the format the requestors want to receive the information in (i.e., paper, electronic, etc.). The Committee notes that this term is used by Indiana.90

Section 2.00 Statement of General Policy

   A.  This Policy covers all electronic case records.

   B.  The public may inspect and obtain electronic case record except as provided by law or as set forth in this policy.

   C.  A court or office may not adopt for electronic case records a more restrictive access policy or provide greater access than that provided for in this policy.

Commentary

   For the reasons stated in the Introduction, paragraph A sets forth that this policy covers electronic case records as defined in Section 1.00.

   The language of subsection C is suggested in the CCJ/COSCA Guidelines, which provide ''[i]f a state adopts a policy, in the interest of statewide uniformity the state should consider adding a subsection . . . to prevent local courts from adopting different policies . . . This not only promotes consistency and predictability across courts, it also furthers equal access to courts and court records.''91 The Committee opines it is essential for the Unified Judicial System to have this provision in the policy to prevent various courts and offices from enacting individual policies governing electronic case records.

   The Committee also notes that subsection C applies to fees in that the level of fees may be a means of restricting access. Therefore, a court or office charged with fulfilling public access requests must comply with the fee schedule provisions contained in Section 5.00 of this policy.

Section 3.00 Electronic Case Record Information Excluded from Public Access

   A.   The following information in an electronic case record is not accessible by the public:

   1.  social security numbers;

   2.  operator license numbers;

   3.  victim information;

   4.  informant information;

   5.  juror information;

   6.  a party's street address, except the city, state, and ZIP code may be released;

   7.  dates of birth, except the year of birth and age may be released;

   8.  witness information;

   9.  SID (state identification) numbers;

   10.  financial institution account numbers and credit card numbers;

   11.  notes, drafts, and work products related to court administration or any office that is the primary custodian of an electronic case record;

   12.  arrest and search warrants and supporting affidavits retained by judges, clerks, or other court personnel until execution of the warrant;

   13.  information sealed or protected pursuant to court order; and

   14.  information to which access is otherwise restricted by federal law, state law, or state court rule.

   B.  Notwithstanding subsection A, electronic case records concerning a single case that are accessible at the courthouse via a public terminal may include a party's full date of birth and full address in addition to all other information that is deemed accessible under this policy.

Commentary

   The Committee's reasoning for not releasing each category of sensitive information is set forth below.

Social Security Numbers

   At the outset, the Committee noted that the MDJS Policy provides that the AOPC will not release social security numbers.92 In addition, the Committee could not locate any controlling legal authority that required the courts and/or offices to either release or redact social security numbers from an electronic case record before permitting access to the same.93 While such controlling authority is non-existent, the Committee's review of the RTKA, federal law, federal and other states court's policies (either enacted or proposed) yielded much information on this subject.

   First, case law interpreting the RTKA consistently maintains that social security numbers fall within the personal security exception of the RTKA and thus should not be released.94

   Second, the Freedom of Information Act (FOIA)95 and the Privacy Act96 apply only to records of ''each authority of the Government of the United States,''97 and they do not apply to state case records.98 However, even if these laws did apply to state case records, social security numbers are exempted from public disclosure under the FOIA personal privacy exemption,99 while the Privacy Act does not appear to restrict the dissemination of social security numbers (only the collection of them).

   In addition, Section 405 of the Social Security Act provides that ''social security account numbers and related records that are obtained or maintained by authorized persons pursuant to any provision of law, enacted on or after October 1, 1990, shall be confidential, and no authorized person shall disclose any such social security account number.''100 Although, it is unclear as to whether this law is applicable to state courts, some courts such as Vermont101 and Minnesota102 appear to have used this statute as a basis for formulating a recommendation on the release of social security numbers.

   With regard to the federal courts, the Judicial Conference Committee on Court Administration and Case Management (''Judicial Conference'') in September 2001 recommended that the courts should only release the last four digits of any social security number in electronic civil case files available to the public.103 The Judicial Conference also recommended that the public should not have electronic access to criminal case files. However, in March 2002, the Judicial Conference established a pilot program wherein eleven federal courts provide public access to criminal case files electronically. In this pilot program, the Judicial Conference set forth that the courts shall only release the last four digits of any social security number.104

   The Committee's review of other states' policies, whether enacted or proposed, found that the redaction of all or part of social security numbers is common. For instance, the policies of the following states provide that only the last four digits of a social security number shall be released: New York,105 Indiana,106 and Maryland.107 In addition, the policies of the following states provide that the entire social security number is protected and no part of it is released: Arizona,108 California (in criminal cases records),109 Florida,110 Vermont,111 Washington (in family court case records),112 Minnesota,113 Massachusetts,114 and Kentucky.115

   The CCJ/COSCACCJ/COSCA Guidelines suggest that the release of social security numbers should be considered on a case by case basis to determine if access should be allowed only at the court facility (whether in electronic or paper form) under Section 4.50(a)116 or to prohibit access altogether under Section 4.60.117

   The Committee concluded when it balanced all the factors outlined above that there may be a legitimate public interest in releasing social security numbers in full or part. Specifically, the release of full or partial social security numbers generally permits the users of court information to link a specific party with specific case information. That is, a social security number is used for ''matching'' purposes. However, the Committee maintains that the other identifiers that are releasable under this policy, such as year of birth and partial address, will ensure that accurate matches of parties and case information can be made. In addition, the Committee is convinced that the release of any part of a social security number would cause an unjustified invasion of personal privacy as well as present a risk to personal security. Thus, the Committee recommends that the MDJS policy of restricting the release of any part of a social security number should be continued.

[Continued on next Web Page]

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1  The Public Access Policy of the Unified Judicial System of Pennsylvania: District Justice Records was originally adopted in 1994, but was later revised in 1997.

2  Electronic Case Records mean information or data created, collected, received, produced or maintained by a court or office in connection with a particular case that exists in the PACMS, CPCMS, or MDJS. Except as provided elsewhere in this policy, documents produced from the PACMS, CPCMS, or MDJS concerning a single case, except web docket sheets, are excluded from this definition.

3  The Committee's research revealed that some jurisdictions have proposed or enacted rules/procedures to provide for the redaction of paper records without requiring court staff to redact the information. For example, a number of state court systems are proposing the use of sensitive data sheets to be filed by litigants (e.g., Washington and Arizona). These data sheets contain the personal identifiers (e.g., social security number, etc.) that are normally found throughout a complaint or petition. The data sheets appear to obviate the need for redaction on the part of the filing office or court and protect sensitive data. Another approach taken by the federal court system is the redaction, fully or partially, of sensitive data in the pleadings or complaint by litigants or their attorneys prior to filing (e.g., U.S. District Court for the Eastern District of Pennsylvania Local Rule of Civil Procedure Rule 5.1.3.). It is the opinion of the Committee that the UJS should move in the direction of creating sensitive data sheets (like Washington and Arizona), especially as electronic filing becomes more the norm.

4  489 U.S. 749, 780 (1989).

5  Report to the Chief Judge of the State of New York by the Commission on Public Access to Court Records (February, 2004).

6  VERMONT RULES FOR PUBLIC ACCESS TO COURT RECORDS § 1--8 (2004).

7  Policy Statement by the Justices of the Supreme Judicial Court Concerning Publications of Court Case Information on the Web (May 2003).

8  Preliminary Recommendations of the Minnesota Supreme Court Advisory Committee on Rules of Public Access to Records of the Judicial Branch (January 12, 2004).

9  See Commonwealth v. Fenstermaker, 530 A.2d 414, 418-20 (Pa. 1987).

10  Id. at 418.

11  In re Cendant, 260 F.3d 183, 192 (3d Cir. 2001) (stating that documents that have been considered public judicial documents have one or more of the following characteristics: (a) filed with the court, (b) somehow incorporated or integrated into the court's adjudicatory proceedings, (c) interpreted or the terms of it were enforced by the court, or (d) required to be submitted to the court under seal).

12  See Fenstermaker, 530 A.2d at 420.

13  In re Buchanan, 823 A.2d 147, 151 (Pa. Super. Ct. 2003), citing Katz v. Katz, 514 A.2d 1374, 1377-78 (Pa. Super. Ct. 1986).

14  Id.

15  Id.

16  Id.

17  Fenstermaker, 530 A.2d at 420.

18  Id.

19  Id.

20  Id. at 418.

21  Id.

22  Commonwealth v. Crawford, 789 A.2d 266, 271 (Pa. Super. Ct. 2001).

23  Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 960-61 (Pa. Super. Ct. 1989), citing Seattle Times v. Rhinehart, 467 U.S. 20, 33 (1984).

24  Fenstermaker, 530 A.2d at 420.

25  In re Cendant, 260 F.3d at 193.

26  PG Publ'g Co. v. Copenhefer, 614 A.2d 1106, 1108 (Pa. 1992).

27 U.S. v. Antar, 38 F.3d 1348, 1358 (3d Cir. 1994).

28  Stenger, 554 A.2d at 960, citing Fenstermaker, 530 A.2d 414; Bank of Am. Nat'l Trust v. Hotel Rittenhouse Associates, 800 F.2d 339 (3d Cir. 1987); In re Alexander Grant and Co. Litigation, 820 F.2d 352 (11th Cir. 1987).

29  In re Newark Morning Ledger Co., 260 F.3d 217, 220-21 (3d Cir. 2001), citing Richmond Newspapers v. Va., 448 U.S. 555, 578 (1980); Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978); Antar, 38 F.3d at 1359-60; Press-Enterprise v. Super. Ct. of Cal., 478 U.S. 1, 11-12 (1986) [hereinafter Press-Enterprise II]; Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 161 (3d Cir. 1993); U.S. v. Criden, 675 F.2d 550, 554 (3d Cir. 1982); U.S. v. Smith, 787 F.2d 111, 114 (3d Cir. 1986); Douglas Oil Co. of Cal. v. Petrol Stops, 441 U.S. 211, 218 (1979). But see U.S. v. McVeigh, 119 F.3d 806 (10th Cir. 1997) (declining to decide whether there is a First Amendment right to judicial document, noting the lack of explicit Supreme Court holdings on the issue since Press Enterprise II, 478 U.S. 1, 11-12 (1986)).

30  In re Newark Morning Ledger, 260 F.3d at 221 n.6., citing Press-Enterprise II, 478 U.S. at 8-9.

31  Id., citing Press-Enterprise II, 478 U.S. at 8-9.

32  Id., citing Smith, 787 F.2d at 114 (summarizing Criden, 675 F.2d at 556).

33  In re Newark Morning Ledger, 260 F.3d at 221, citing U.S. v. Smith, 123 F.3d 140, 147 (3d Cir. 1997) (quoting Antar, 38 F.3d at 1359).

34  Antar, 38 F.3d at 1362.

35  Richmond Newspapers, 448 U.S. 555 (1980).

36  Press-Enterprise II, 478 U.S. 1 (1982).

37  U.S. v. DiSalvo, 14 F.3d 833, 840 (3d Cir. 1994).

38  In re Newark Morning Ledger, 260 F.3d 217.

39  Smith, 123 F.3d at 143-44.

40  Stenger, 554 A.2d at 960, citing Seattle Times, 467 U.S. at 33.

41  E.g., Waller v. Georgia, 467 U.S. 39, 45 (1984), citing Press-Enterprise Co. v. Super. Ct. of Cal., 464 U.S. 501, 510 (1984) [hereinafter Press-Enterprise I].

42  Fenstermaker, 530 A.2d at 417 (citing PA. CONST. art. I, §§ 9, 11).

43  Id., citing Commonwealth v. Contankos, 453 A.2d 578, 579-80 (Pa. 1982). 44 During the reign of Henry VIII and his successors, the jurisdiction of the

44  During the reign of Henry VIII and his successors, the jurisdiction of the star chamber court was illegally extended to such a degree (by punishing disobedience to the king's arbitrary proclamations) that it was eventually abolished. Black's Law Dictionary (1990).

45  Commonwealth v. Harris, 703 A.2d 441, 445 (Pa. 1997), citing Commonwealth v. Berrigan, 501 A.2d 226 (Pa. 1985).

46  Commonwealth v. Conde, 822 A.2d 45, 49 (Pa. Super. Ct. 2003), citing Commonwealth v. Knight, 364 A.2d 902, 906-07 (Pa. 1976).

47  Id., citing Knight, 364 A.2d at 906-07

48  Commonwealth v. French, 611 A.2d 175, 180 n.12 (Pa. 1992).

49  R.W. v. Hampe, 626 A.2d 1218, 1221 (Pa. Super. Ct. 1993), citing Hutchinson v. Luddy, 581 A.2d 578, 582 (Pa. Super. Ct. 1990) (citing Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1983)).

50  Commonwealth v. Murray, 502 A.2d 624, 629 (Pa.Super. Ct. 1985) appeal denied, 523 A.2d 1131 (Pa. 1987).

51  French, 611 A.2d at 180 n.12.

52  United States Department of Justice Freedom of Information Act Reference Guide (November 2003), available at http://www.usdoj.gov/04foia/referenceguidemay99.htm.

53  5 U.S.C. § 552a (2004).

54  United States House of Representatives A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records (First Report 2003).

55  PA. STAT. ANN. tit. 65, §§ 66.1--66.9 (West 2004).

56  56 PA. STAT. ANN. tit. 65, § 66.1 (West 2004).

57  Id.

58  The Committee notes that, in its opinion, there was a shift in the treatment of paper and electronic records and the balance between open records versus privacy protections between the various draft versions of the CCJ/COSCA Guidelines submitted for review and comment.

59  Daniel J. Solove, Access and Aggregation: Public Records, Privacy and the Constitution, 86 Minn. L. Rev. 1137 (2002) (noting that more than 165 companies compile ''digital biographies'' on individuals that by a click of a mouse can be scoured for data on individual persons).

60  Id. at 1173.

61  Id. at 1174 (citing In re Cont'l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984)).

62  Id. at 1174-75.

63  Stephen Gillers, Why Judges Should Make Court Documents Public, N.Y. Times, November 30, 2002, p 17.

64  George F. Carpinello, Public Access to Court Records in New York: The Experience Under Uniform Rule 216.1 and the Rule's Future in a World of Electronic Filing, 66 ALB. L. REV. 1089, 1094 (2003) (citing Dawson v. White & Case, 584 N.Y.S.2d 814, 815 (N.Y. App. Div. 1992), wherein financial information concerning defendant's partners and clients was sealed as disclosure would not benefit a relevant and legitimate public interest).

65  Barbara A. Petersen and Charlie Roberts, Access to Electronic Public Records, 22 FLA. ST. U.L. REV. 443, n. 247 (1994).

66  Id. at 486.

67  Solove, supra note 59, at 1140.

68  Robert C. Lind and Natalie B. Eckart, The Constitutionality of Driver's Privacy Protection Act, 17 Communication Lawyer 18 (1999). See also, Solove, supra note 59, at 1173.

69  David Narkiewicz, Identity Theft: A Rapidly Growing Technology Problem, The Pennsylvania Lawyer, May--June 2004, at 58.

70  Bob Sullivan, Study: 9.3 Million ID Theft Victims Last Year, MSNBC.com, January 28, 2005.

71  Id.

72  ID Theft Is No. 1 Fraud Complaint, CBSNEWS.com, January 22, 2003.

73  Jim Smith, Regional Task Force to Tackle ID-Theft Crimes, phillynews.com, November 13, 2002.

74  John Waggoner, Id theft scam spreads across USA, USATODAY.com, February 22, 2005; LexisNexis Id theft much worse than thought, MSNBC.com, April 12, 2005.

75  Thief steals UC-Berkeley laptop, CNN.com, March 31, 2005.

76  Hiawatha Bray, BC warns its alumni of possible Id theft after computer is hacked, Boston Globe, March 17, 2005.

77  Jonathon Krim, States Scramble to Protect Data, Washington Post, April 9, 2005.

78  ARIZ. SUP. CT. R. 123(b)(6).

79  Preliminary Recommendations of the Minnesota Supreme Court Advisory Committee on Rules of Public Access to Records of the Judicial Branch (January 12, 2004), p. 4.

80  Steketee, Martha Wade and Carlson, Alan, Developing CCJ/COSCA Guidelines for Public Access to Court Records: A National Project to Assist State Courts, October 18, 2002, available at www.courtaccess.org/modelpolicy [hereinafter CCJ/COSCA Guidelines], p. 10.

81  Id.

82  Id.

83  PA. STAT. ANN. tit. 65, § 66.1 (West 2004).

84  Id.

85  CCJ/COSCA Guidelines, p. 11.

86  CCJ/COSCA Guidelines, p. 10.

87  CCJ/COSCA Guidelines, p. 29.

88  For example this term is used by Indiana (Proposed Revision of Ind. Admin. R.9(C)(9)), Minnesota (Preliminary Recommendations of the Minnesota Supreme Court Advisory Committee on Rules of Public Access to Records of the Judicial Branch, p. 39), California (Cal. CT. R. 2073(f)), and Colorado (Public Access Committee Cost Recovery Formula Concerning the Release of Electronic Data, Section II.C.1.).

89  CCJ/COSCA Guidelines, p. 34.

90  Proposed Revision of Ind. Adm. R. 9(C)(10).

91  CCJ/COSCA Guidelines, pp. 24-25.

92  See MDJS policy, Section II.B.2.a.

93  The Committee notes the introduction of Pennsylvania Senate Bill 703 in the 2003 Legislative Session concerning the confidentiality of social security numbers. This bill is identical to Senate Bill 1407 introduced the previous year which would prohibit the posting or public display of such numbers.

94  See, e.g., Tribune-Review Publ'g Co. v. Allegheny County Hous. Auth., 662 A.2d 677 (Pa.Commw. Ct. 1995), appeal denied, 686 A.2d 1315 (Pa. 1996); Cypress Media, Inc. v. Hazelton Area Sch. Dist., 708 A.2d 866, Pa. Commw. Ct. 1998), appeal dismissed, 724 A.2d 347 (Pa. 1999); and Times Publ'g Co., Inc. v. Michel, 633 A.2d 1233 (Pa. Commw. Ct. 1993), petition for allowance of appeal denied, 645 A.2d 1321 (Pa. 1994).

95  5 U.S.C. § 552 (2004).

96  5 U.S.C. § 552(a) (2004).

97  5 U.S.C. § 551 (2004), see also, 5 U.S.C. § 552(f) (2004).

98  Please note that the CCJ/COSCA Guidelines provide that ''[a]lthough there may be restrictions on federal agencies disclosing Social Security Numbers; they do not apply to state or local agencies such as courts.'' See CCJ/COSCA Guidelines, p. 9.

99  E.g., Sheet Metal Worker Int'l Ass'n, Local Union No. 19 v. U.S. Dep't of Veterans Affairs, 135 F.3d 891 (3d Cir. 1998).

100  42 U.S.C. § 405(c)(2)(C)(viii) (2004).

101  See Reporter's Notes following VERMONT RULES FOR PUBLIC ACCESS TO COURT RECORDS RULE 6(b)(29) which provides that ''[u]nder federal law social security numbers are confidential.'' The Reporter specifically cites to Section 405(c)(2)(C)(viii)(1) of the Social Security Act.

102  Preliminary Recommendations of the Minnesota Supreme Court Advisory Committee on Rules of Public Access to Records of the Judicial Branch (January 12, 2004), p. 15, n.30 (citing the Social Security Act's provision that provides ''[f]ederal law imposes the confidentiality of SSN whenever submission of the SSN is 'required' by state or federal law enacted on or after October 1, 1990.'')

103  Report of the Judicial Conference Committee on Court Administration and Case Management on Privacy and Public Access to Electronic Case Files, p. 3. As a result of this report, the U.S. District Court for the Eastern District of Pennsylvania promulgated Local Rule 5.1.3 which provides that personal identifiers such as social security numbers should be modified or partially redacted in all documents filed with the court before public access is permitted. See also Local Rules of Practice for the Southern District of California Order 514(2) which provides in part that ''social security numbers shall be excluded from electronic public access except for judiciary employees, the United States Attorney or their representatives and litigants.''

104  Remote Public Access to Electronic Case Records: A Report on a Pilot Project in Eleven Federal Courts, prepared by the Court Administration and Case Management Committee of the Judicial Conference, p. 12.

105  Report to the Chief Judge of the State of New York by the Commission on Public Access to Court Records (February, 2004), p. 8. The Report provides that social security numbers should be shortened to their last four digits.

106  Proposed Revision of IND. ADMIN. R. 9(F)(4)(d) provides that when a request for bulk or compiled information include release of social security numbers, that only the last four digits of the social security number should be released. However, Rule 9(G)(1)(d) provides that ''[t]he following information in case records is excluded from public access and is confidential: . . . Social Security Numbers.''

107  Recommendations to the Court of Appeals Court Committee Designated to Develop Rules Regarding Public Access to Court Records, p. 44 which provides that '' . . . a custodian shall deny inspection of a case record or a part of a case record that would reveal: . . . [a]ny part of the social security number . . . of an individual, other than the last four digits.''

108  ARIZ. R. 123 Public Access to the Judicial Records of the State of Arizona, Subsection (c)(3) provides in part that ''documents containing social security [numbers] . . . when collected by the court for administrative purposes, are closed unless made public in a court proceeding or upon court order.'' See also Report and Recommendation of the Ad Hoc Committee to Study Public Access to Electronic Records dated March 2001 Sections (IV)(B), (IV)(D), (V)(1) and (VI)(6).

109 CAL. CT. R 2073.5(c) which provides that ''[t]he court should, to the extent feasible, redact the following information from records to which it allows remote access [to]: . . . social security numbers.'' Please note that this subsection of the rule provides in part that it ''does not apply to any document in the original court file, it applies only to documents that are available by remote electronic access.'' See also CAL. CT. R 2077(c)(1).

110  Order of Supreme Court of Florida, No. AOSO04-4 (February 12, 2004). Specifically, the Order lists information that shall be accessible in electronic format to the public. Social security numbers are not listed in the Order.

111  VERMONT RULES FOR PUBLIC ACCESS TO COURT RECORDS RULE 6(b)(29). This subsection provides that ''the public shall not have access to the following judicial branch records . . . records containing a social security number of any person, but only until the social security number has been redacted from the copy of the record provided to the public.''

112  WASH. CT. R. 22. In this Rule, a social security number is considered to be a ''restricted personal identifier'' under section (b)(5). Furthermore, under section (g), restricted personal identifiers are generally not accessible to the public.

113  Preliminary Recommendations of the Minnesota Supreme Court Advisory Committee on Rules of Public Access to Records of the Judicial Branch (January 12, 2004), pp. 14, 36, and 48. Specifically, proposed Rule 8(2)(b)(1) provides that remote access to social security numbers of parties, their family members, jurors, witnesses, or victims in electronic records will not be allowed.

114  Policy Statement by the Justices of the Supreme Court Judicial Court Concerning Publications of Court Case Information on the Web, (May 2003), p. 3, subsection (A)(6) which provides in part that no information regarding an individual's social security number should appear on the Court Web site.

115  Kentucky Court of Justice Access to Electronic Court Records (December 2003) provides in part that ''we decided to remove the individual's . . . social security number . . . from public remote access.''

116  CCJ/COSCA Guidelines, p. 40.

117 CCJ/COSCA Guidelines, p. 45.



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