Thursday, February 04, 2016
Ind. Courts - Online public access to e-filed public documents to be studied by Indiana Court [Updated twice]
From an order filed yesterday, creating an advisory task force on remote access to and privacy of electronic court records:
Currently, the public can access non-confidential records in a case file by going to the courthouse or contacting the clerk or court staff for assistance. The result is often referred to as "practical obscurity" because most public case documents remain obscure in the hard copy case file. In the near future, the electronically filed and digitized documents in a case file could be posted on the Internet and made available around the world. This capability raises new questions about balancing litigants' privacy against the public convenience (and expectation) of remote access over the Internet.The order continues:
In 2003, a 28-member Privacy and Public Access Task Force, chaired by Justice Brent Dickson, worked for a year and recommended to the RMC a comprehensive rule about confidentiality and public access to court records. Ultimately, the result was this Court’s adoption of a new Administrative Rule 9, effective January 1, 2005.Here are the members:
We find that technological developments since the adoption of Administrative Rule 9 warrant a renewed study of best practices and policies on Internet access to electronic court records.
An Advisory Task Force on Remote Access to and Privacy of Electronic Court Records is hereby created to work under the auspices of the RMC and Court Technology. A list of the Advisory Task Force members is attached. In conducting its work, the task force should consider the purposes articulated in Indiana Administrative Rule 9(A)(2), which are:
a. Promote accessibility to court records;
b. Support the role of the judiciary;
c. Promote government accountability;
d. Contribute to public safety;
e. Minimize risk of injury to individuals;
f. Protect individual privacy rights and interests;
g. Protect proprietary business information;
h. Minimize reluctance to use the court system;
i. Make the most effective use of court and clerk staff;
j. Provide excellent customer service;
k. Avoid unduly burdening the ongoing business of the judiciary.
The task force is directed to provide an initial written report, with findings and recommendations, to the RMC and to Justice Steve David and Judge Paul Mathias as the leaders of the Court's technology initiatives, not later than September 1, 2016.
1. The Honorable Loretta H. Rush, Chief Justice of Indiana, ChairSome ILB readers may remember this Nov. 10, 2015 post from Prof. Joel Schumm (#15 above) headed, "Appellate E-filing is terrific! — except for one thing." The "one big disappointment":
2. Melissa Jane Avery, Attorney, Broyles Kight & Ricafort, P.C.
3. Professor Fred H. Cate, Indiana University Maurer School of Law
4. Christa Coffey, Clerk, Tippecanoe Circuit and Superior Courts
5. Kenneth J. Falk, Legal Director, ACLU of Indiana
6. Christine Hayes Hickey, Attorney, Rubin and Levin, P.C.
7. Lilia G. Judson Interim Chief Administrative Officer, Indiana Supreme Court
8. Stephen Key, Executive Director and General Counsel, Hoosier States Press Association
9. Larry A. Landis, Executive Director, Indiana Public Defender Council
10. Jon Laramore, Executive Director, Indiana Legal Services, Inc.
11. The Honorable Peggy Lohorn, Judge, Montgomery Superior Court 2
12. Kelly McBride Executive Director, Domestic Violence Network
13. The Honorable David Ober, Indiana House of Representatives
14. David N. Powell, Executive Director, Indiana Prosecuting Attorneys Council
15. Professor Joel Schumm, Indiana University Robert McKinney School of Law
16. Gary D. Secrest, Assistant Attorney General, Office of the Attorney General
17. Debra Walker, Clerk, Henry Circuit Court
18. The Honorable Mary G. Willis, Judge, Henry Circuit Court 1
Now that all these motions and briefs exist in electronic format, one would expect easy access by other lawyers, trial judges, the public, and the press. Unfortunately, that is not part of the pilot project.The new "advisory task force on remote access to and privacy of electronic court records" is to make "findings and recommendations to the RMC and to Justice Steve David and Judge Paul Mathias as the leaders of the Court's technology initiatives." No word on what will happen thereafter.
For the past several months, court opinions and orders have been linked to the online docket; a simple click on a hyperlink takes any interested person there. E-filed motions and briefs, however, will not be hyperlinked through the online docket or otherwise available. When I asked about this at the training session, I was told this was a “policy decision” — not one related to technology.
I hope that decision is revisited. Each E-filed document requires the user to specify whether it is “public” or “confidential.” Nothing appears on the online docket until personnel in the Clerk’s office review and accept the filing. Every “public” document should truly be public, which with today’s technology and expectations means accessible through a click of the docket.
Although some briefs end up on Westlaw, many do not and many Indiana lawyers, not to mention nearly every member of the media or public, do not have access to Westlaw. Lawyers and judges may be interested in the arguments made by counsel in a similar case; they should be able to read those arguments without paying the Clerk’s office for a photocopy or tracking down counsel to request the document be emailed to them. Nor should that burden be imposed on the public or press whenever they are interested in an E-filed public document.
The Indiana Supreme Court has generally been very good on transparency issues, including the webcasting of oral arguments well before most other courts. I hope that commitment to transparency continues by linking all public E-filed documents.
The ILB has asked the Court's Chief Public Information Officer about whether the meetings of this advisory group will be public. One hopes they will be webcast, archived, and that agendas will be available in advance.
[Updated at 11:40 AM] The ILB has heard back from the Court:
The meetings are open to the public. The first meeting is February 26, 12-2pm. I do not have a location established at this time.ILB: That is good to hear. This topic is being debated across the country; it would be good if Indiana could establish a public record of its deliberations through a video-archive or at least agendas and extensive minutes.
[Updated Feb. 12th] On Feb. 11th the Supreme Court filed an order adding another member to the Advisory Task Force, Honorable Sharon Negele, Indiana House of Representatives. She joins Honorable David Ober (#13 above), also of the Indiana House of Representatives. Both are Republicans. Rep. Negele is a co-author of the introduced version of HB 1019, re body cameras and police recordings.