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FOR IMMEDIATE RELEASE
Contact: Brant Houston, 573-882-2042

Jan. 26, 2001

IRE's Comment on Access to Court Electronic Records

The Administrative Office of the United States Courts
Court Administration Policy Staff
Attn: Privacy Comments, suite 4-560
One Columbus Circle, N.E.
Washington, DC 20544

Re: Request for Comment on Privacy and Public Access to Electronic Case Files

Dears Sirs and Madams:

Pursuant to the request of the Judicial Conference ("Request for Comment"), Investigative Reporters and Editors, Inc. ("IRE") hereby submits its comment on the implications of restricting or eliminating access to electronic court files maintained by the federal judiciary. IRE is a not-for-profit organization dedicated to improving the quality of investigative reporting within the field of journalism. Its more than 4,500 members work for the nation's leading broadcasters, cable operators, newspapers, magazines, and new media companies, and are directly engaged in the day-to-day practice of acquiring and disseminating news to the public. Together with the Missouri School of Journalism, IRE also operates the National Institute for Computer-Assisted-Reporting, which trains reporters in the practical skills of analyzing electronic information and provides databases for use by professional journalists.

IRE would be pleased to participate in a public hearing if one is held, and respectfully requests that it be provided an opportunity to do so. IRE's comment addresses the following three issues: (1) full public access to court electronic records; (2) elimination of fees for remote access to court electronic records on federal judicial web sites; and (3) adequate measures already in existence to ensure legitimate privacy interests with respect to the presumptive availability of publicly filed federal court records.

As set forth more fully below, IRE believes that unrestricted remote access to court electronic records provides the public with critical information about health and safety issues. IRE therefore believes that the public will be endangered if this vital source of information is curtailed by Judicial Conference policy. IRE also believes that the expense of providing access to court electronic records is already covered by U.S. taxpayers, and that it is unfair to further burden American citizens by requiring them to pay unreasonable fees for information that should be freely available on government-operated web sites. In addition, IRE believes that discrimination among end users of data based upon personal status, together with the overall exclusionary effect of charging fees for remote public access to court electronic records, will effectively shut off access to vital public information for a substantial segment of the population, including many of the most impoverished members of our society. Lastly, IRE believes that adequate protection for confidential and private information already exists in the form of thousands of existing or pending federal, state, and local statutes, regulations, and rules. If properly enforced, these measures should address the concerns raised by the Request for Comment about disclosure of confidential or sensitive information in court electronic records, and preclude the need for implementing any "policy guidance" by the Judicial Conference.

The Common Law, U.S. Constitution, and Statutory
Scheme that Provides for Operation and Funding of the Federal Courts
Mandate Full Public Access to Electronic Records Via the Internet

IRE strongly urges that the Judicial Conference - or the appropriate Congressional committees or subcommittees - conduct open hearings on any proposals that would thwart broad access to public court records via the Internet. IRE believes that any intervention by the Judicial Conference that would effectively curtail Internet access to public court records is unnecessary and politically unsound. For reasons that could perhaps best be presented in evidentiary hearings, IRE further believes the such action would contravene the traditional presumption of public access to court records under the common law and the First Amendment, and would also be constitutionally suspect under the equal protection clause and separation of powers doctrine. In addition, IRE believes that authority to restrict public access to court electronic records under federal statutes is subject to limitations in the statutory scheme enacted by Congress to provide for funding and operation of the federal judiciary, including, but not limited to, 28 U.S.C. § 101, 331, 612, 614, 1913, 1914, 1926, and 1931, together with the relevant legislative history underlying these and related statutes, such as the Federal Courts Improvement Act of 2000, judiciary appropriations acts of the past decade, the Judicial Amendments Act of 1994, and all legislation concerning the establishment, function, and operation of the Judiciary Information Technology Fund.

IRE understands that other commentators, including bar associations and media companies, plan to submit comments addressing the constitutional grounds for discouraging involvement of the federal judiciary in restricting access to court electronic records. IRE has therefore focused its comments on different considerations, although it will be pleased to supplement its response on any issues deemed to be of further interest to the Judicial Conference.

"Pay Per View" User Fees for Public Access to Court Records
Available on Federal Judicial Web Sites Are Unjustified and Unreasonable, and Should Be Discontinued

IRE also strongly urges the Judicial Conference to discontinue imposing fees for electronic access to court records by the public. IRE believes that the existing and proposed fees for access to public court records via the Internet through PACER are unjustified and unreasonable for numerous reasons, including the following:

• Sufficient funding has been provided by Congress for public access to court electronic records: Congress appropriated approximately $4.3 billion to the federal courts for FY 2001. U.S. taxpayers have therefore already paid for the collection, parsing, and distribution of public court records by the federal judiciary, and should not be required to purchase and repeatedly repurchase this same data from government-operated web sites on the basis of the 7¢ "pay-per-page-view" formula currently administered by the U.S. Office of Courts. Whatever, the short term economic benefits derived from the "self-funding" of PACER, it is probably that they are or will be offset in the immediate future by the substantial costs associated with operating a "pay-per-view" system, as well as by the enormous direct and indirect costs borne by the public because of policies that restrict open access to aggregate data.
• Many costs associated with access to court records are apparently already recovered through filing and other fees charged to litigants. See, e.g., 28 U.S.C. § 101, et seq.
• Imposition of user fees for remote access to court electronic records are inconsistent with technological efficiencies inherent in displaying and distributing documents on judicial web sites. These technological efficiencies by themselves call into question the economic basis for continued imposition of any ongoing fees for remote public access, especially payment of 7¢ per page to view, download, or print about 54 lines of text. For this same reason, the Judicial Conference's assertion that existing user fees represent a savings over the current 50¢ per page photocopy charge misses the mark. The marginal cost of displaying and redisplaying electronic court records on judicial web sites is extremely low, and differs significantly from the relatively high marginal cost of duplicating hard copies of individual documents. See Carl Shapiro and Hal R. Varian, Information Rules: A Strategic Guide to the Network Economy 1-81 (1999). In sum, the quantitative and qualitative benefits of utilizing the Internet should accrue not only to the federal judiciary, but also to the public it serves and the taxpayers who fund its operations. See, e.g., Report to Congress on the Optimal Utilization of Judicial Resources (Administrative Office of the U.S. Courts, February 2000).
• Web sites maintained by Federal Executive branch agencies and certain state courts demonstrate that free access to government web sites containing vital public records is a workable, beneficial, and reasonable approach. Florida, for example, operates a web site that provides unlimited, free Internet access to public court calendars, lists of cases, litigation documents, judicial opinions, and streaming video of complete appellate arguments (www.flcourts.org). Similarly, federal agencies, such as the U.S. Patent and Trademark Office, provide unrestricted, no cost access to enormous numbers of continuously updated records on a fully searchable, state-of-the-art web site (www.uspto.gov).
• Imposition of user fees for remote public access to court electronic records appears to be discretionary, not mandatory, and should be based upon the reasonableness of such fees under the circumstances. See, e.g., 28 U.S.C. § 612, et seq.; see also The Federal Courts Improvement Act of 2000, Pub. L. No. 106-518 (signed into law on Nov. 13, 2000) and its applicable legislative history (S.2915). At least one report previously released by the Administrative Office of the U.S. Courts appears to overstate Congressional authorization of user fees for remote access to electronic records. See Electronic Case Files in the Federal Courts: A Preliminary Examination of Goals, Issues, and the Road Ahead - Discussion Draft (Administrative Office of the United States Courts, March 1997) at 32 n.45, 32-35 (Congress has already determined that fees should be charged for "read-only" remote electronic access to court information citing The Judiciary Appropriations Act, 1991 Pub. L. No. 101-515, § 404, 104 Stat. 2101, 2129, 2132-33 (1990); The Judiciary Appropriations Act, 1992, Pub. L. No. 102-140, § 303, 105 Stat. 782, 807, 810 (1991); Judicial Amendments Act of 1994, Pub. L. No. 103-420, § 2(2), (4), 108 Stat. 4343 (amending 28 U.S.C. § 612 to require deposit of electronic public access fees in what is now known as the Judiciary Information Technology Fund)). Cf. H.R. 1752, Bill Summary and Status for the 106th Congress (Judicial Improvements Act of 2000, Title I: Judicial Financial Administration: "(Sec. 110) Authorizes the Judicial Conference to prescribe reasonable fees for use of information technology resources provided by the judiciary to improve the efficiency of access to the courts").1 Testimony before Congress on behalf of the Administrative Office of United States Courts contains frank admissions that the system currently providing public access to federal court electronic records is "self-funding", although it is far from clear that this is an appropriate or necessary mechanism through which information essential to the health and safety interests of American citizens should be provided. In any event, the exercise of discretion to restrict remote access to court electronic records or to impose excessive user fees without a reasonable economic basis to do so may contravene not only the letter and spirit of relevant legislation, but also interferes with presumptive rights of public access under the common law and the First Amendment.

Existing Statutes, Rules, and Regulations Provide Adequate Protection
for Privacy and Confidentiality, and New Restrictions Based Upon
Novel Application of the “Practical Obscurity”Doctrine are Unwarranted

The Judicial Conference has acknowledged that the paper versions of case files have long been presumed to be open for public inspection and copying unless sealed by court order, but is nevertheless studying "the privacy and security implications of vastly wider public access" to court records stored on computerized databases (www.uscourts.gov/privacyn.pdf).

As possible justification for curtailing public access, the Judicial Conference notes that case files can contain private or sensitive information "such as medical records, employment records, detailed financial information, tax returns, Social Security numbers and other personal identifying information." By the same token, but unmentioned in the Request for Comment, court records also contain information of indisputable public interest, including cases about aircraft safety; defective tires, medication, baby food, toys; tax, stock, and election fraud; insurance scams; toxic waste dumping; perjury by government officials; illegal arms deals; bank failures; antitrust claims; and civil rights violations.

Accompanying the Request for Comment, the Judicial Conference also released a nine page "staff report" entitled "Privacy and Access to Electronic Case Files in the Federal Courts" ("Staff Report"). The centerpiece of this report is an analysis of case law justifying suppression of private or sensitive information contained in public court files. Because indiscriminate disclosure of this data in "the new electronic environment" may violate an individual's right to privacy, interfere with fair trials, or impede law enforcement efforts, the Staff Report suggests that presumptive rights of access dating back to the founding of the Republic may be trumped by other interests. Cf. William H. Rehnquist, Is An Expanded Right to Privacy Consistent With Fair and Effective Law Enforcement? Or: Privacy, You’ve Come a Long Way, Baby, 23 Kan. L. Rev. 1 (1974).

The Staff Report cites in passing a controlling Supreme Court case, but otherwise fails to discuss the well-established two part inquiry for identifying traditionally protected rights of access under the First Amendment. See Press-Enterprise Co. v. Superior Court of Cal., 478 U.S. 1, 8 (1986) ("Press- Enterprise II"); El Vocero De Puerto Rico v. Puerto Rico, 508 U.S. 147, 150 (1993) ("Press-Enterprise test controls question of First Amendment right to public access"). The first prong requires a historical inquiry (i.e., whether the information or records at issue had traditionally been available to the general public at the time our Constitution was adopted). Press-Enterprise II, 478 U.S. at 8. The second prong involves a functional inquiry (whether public access plays a significant positive role in the functioning of the particular process–e.g., the overall administration of the criminal justice system). If the particular proceeding in question passes these tests of "experience and logic", a qualified First Amendment right of public access attaches:

The presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.

Press-Enterprise II, 478 U.S. at 8-10. (citations omitted). See id. at 478 U.S. at 21 (Stevens J. and Rehnquist J. dissenting):

[A] common-law tradition of openness at the time the First Amendment was ratified suggested an intention and expectation on the part of the Framers and ratifiers that those proceedings would remain presumptively open . . . .history matter[s] primarily for what it reveal[s] about the intentions of the Framers and ratifiers of the First Amendment.

See also Leonard W. Levy, Original Intent and the Framers' Constitution 213 (1988) ("Original Intent"); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 565, 583 (1980)(a qualified right of public access pursuant to the First Amendment can arise from "unbroken, uncontradicted history" of such rights of public access and from "common practice in America when the Constitution was adopted") (quoting: Press- Enterprise Co. v. Superior Ct. of Cal., 464 U.S. 501, 508 (2042) ("Press-Enterprise I").

The Staff Report also apparently bases its analysis of the relevant law upon an inapposite 1989 Supreme Court case. See United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). That case involved disclosure of comprehensive personal criminal history data compilations - rap sheets - pursuant to the federal Freedom of Information Act ("FOIA")and its enumerated exemptions. The Supreme Court held that access to information in the possession of the Department of Justice was not required under FOIA, and reversed a lower court ruling largely on the basis of a dissenting opinion by then-appellate judge Kenneth W. Starr. Id., 489 U.S. at 754. Cf. Staff Report at 5 ("The Freedom of Information Act (FOIA) and Privacy Act, which are the main statutes governing public access to executive branch records, do not apply to the judicial branch and do not govern access to case file documents") (citing 5 U.S.C. §§ 551(1)(B) & 552(f); United States v. Frank, 864 F.2d 992, 1013 (3d Cir. 1988); Warth v. Department of Justice, 595 F.2d 521, 522-23 (9th Cir. 1979)).

Notwithstanding the above, the Staff Report relies upon dicta in the Reporters Committee for Freedom of the Press case to suggest that a privacy interest may somehow reside in court records that were once publicly available, but are now "practically obscure" because they have become more difficult to locate. 489 U.S. 749. For example, the Staff Report (at 4) contains the following quotation, noting "the vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information." 489 U.S. at 764. Again, however, the "practical obscurity" doctrine does not appear to be applicable to restricting access to court records. Further application of that novel privacy theory seems limited, at best, to questions of access, solely under FOIA, to a database of criminal records compiled and maintained under the auspices of the Executive Branch. It is therefore neither relevant nor applicable to access issues concerning publicly-filed court records maintained by the Judicial Branch. See Union Oil Co. of California v. Leavell, 220 F.3d 562 (7th Cir. 2000) (Easterbrook, J.) ("What happens in the halls of government is presumptively public business. Judges . . . issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason."). In rejecting efforts to seal a settlement agreement, the Seventh Circuit Court of Appeals observed: "When [people] call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials. Judicial proceedings are public rather than private property." Id., 220 F.3d at 568.

With respect to criminal as opposed to civil judicial records, the criminal case file options contained in the Request for Comment include a proposal for an outright ban on extending procedures for electronic case filing to such records ("Do not provide electronic public access") as well as an option for partial access ("Provide limited electronic public access to criminal case files"). IRE notes that the list of options does not include an option for unrestricted access to publicly-filed criminal case records, even though that option would represent the status quo for access to such records under existing law. See generally, C. Thomas Dienes, Lee Levine, Robert C. Lind, Newsgathering and the Law 179-250 (2d ed. 1999). Appellate and trial courts have repeatedly held that presumptive First Amendment or common law rights of access attach to court records involving: pretrial proceedings in criminal cases; information contained in or attached to indictments; criminal complaints; pleadings; bills of particulars; the fruits of the discovery process; suppression hearing transcripts; bail and detention records; plea agreements; and trial and post trial records. Id.

Without downplaying legitimate concerns about the hot button issue of personal privacy and the serious problems caused by identity theft, the Judicial Conference has not established that restricting electronic access to court records would improve the security of personal data or reduce identity theft, as some of the most sensitive data (not already subject to restricted disclosure) remains available from private sector sources . See Amitai Etzioni, The Limits of Privacy 10 (1999) ("Consumers, employees, even patients and children have little protection from marketeers, insurance companies, bankers and corporate surveillance"). In addition the Judicial Conference recognizes (Request for Comment at 3), that Congress and the Executive Branch have quickly responded through new laws, regulations and new or pending legislation to shield personal banking and medical records, tax returns, and Social Security numbers from unwarranted disclosure at the behest of the government, especially under circumstances in which disclosure may be compelled or required.

The overall situation, then, is less dire than presented in the Request for Comment and the Staff Report. Thousands of existing Federal, state and local statutes, rules and regulations protect private and confidential information, and no showing has been made that these existing measures are inadequate if properly enforced. Indeed, it appears as a general matter that the judiciary does a laudable job of ensuring confidentiality, when and where appropriate, and successfully balances privacy concerns with presumptive common law and First Amendment rights of access in a wide variety of cases.

Based upon the foregoing, IRE believes that premature or drastic steps by the Judicial Conference to limit access to court records via the Internet are unwarranted. At present, there appears to be no reasonable (or even rational) basis for enhancing access based upon personal status (litigants and lawyers versus the public-at-large), or for providing superior access to public court records at no cost based upon mere physical presence at a courthouse (as opposed to remote access from an individual's home or office via the Internet). Although the Request for Comment states that "electronic case files . . . will be available at public computer terminals at courthouses free of charge" (at 2), it would be unfortunate if full, open access to publicly filed court documents were ultimately conditioned upon first walking through metal detectors and submitting to security checks.

Respectfully submitted,

INVESTIGATIVE REPORTERS AND EDITORS, INC.

By: James Neff
President, IRE Board of Directors

IRE Access Committee:
Ms. Jennifer LaFleur, Chair
Ms. Rosemary Armao
Ms. Sarah Cohen
Mr. Charles N. Davis
Ms. Rebecca Daugherty
David B. Smallman, Esq.**
Mr. Duff Wilson

**Principal Drafter of Comment
Ç 1 See ( http://thomas.loc.gov/cgi-bin/bdquery/z?d106:HR01752:@@@L&summ2=m& ) For example, Section 110. Fee Authority for Technology Resources in the Courts proposed amending Chapter 41 of title 28, United States Code, by adding the following:

SEC. 110. FEE AUTHORITY FOR TECHNOLOGY RESOURCES IN THE COURTS.

(a) IN GENERAL- Chapter 41 of title 28, United States Code, is amended by adding at the end the following:

`Sec. 614. Authority to prescribe fees for technology resources in the courts `The Judicial Conference is authorized to prescribe reasonable fees pursuant to sections 1913, 1914, 1926, 1930, and 1932, for use of information technology resources provided by the judiciary to improve the efficiency of and access to the courts. Fees collected pursuant to this section are to be deposited in the Judiciary Information Technology Fund to be available to the Director without fiscal year limitation for reinvestment in information technology resources which will advance the purposes of this section.'.

(b) CONFORMING AMENDMENT- The table of sections for chapter 41 of title 28, United States Code, is amended by adding at the end the following new item:

`614. Authority to prescribe fees for technology resources in the courts.'. (emphasis added)e