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Privacy and court records
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Date: Mon, 23 Oct 1995 13:40:34 -0700 (PDT)
From: James Wheaton
Mr. Rowley:
On behalf of the Society of Professional Journalists, please accept these late-filed comments in response to call for comment by the Subcommittee on Privacy and Access. I understand Dee Ziegler of the Daily Journal, one of our Board members, requested a brief extension, which you graciously granted. I was responsible for getting these comments to you in a timely fashion and failed. As is so often the case, trying to use the newer, faster technology only slowed it down. The fault is entirely mine, not hers.
The text of our comments follow, and a hard copy on letterhead has been mailed as well.
You may reach me at: 1736 Franklin Street, 8th Floor, Oakland, California 94612 510/208-7744 (phone) 510/465-6248 9 (fax) wheaton@well.com
Thank you for your kind attention.
/s/ James Wheaton Co-chair, Freedom of Information Committee, Society of Professional Journalists (NoCal) Senior Counsel, First Amendment Project
COMMENTS OF SOCIETY OF PROFESSIONAL JOURNALISTS RE: PRIVACY AND COURT RECORDS
Subcommittee on Privacy and Access Policies Committee on Court Technology Judicial Council of California c/o Victor Rowley Administrative Office of the Courts 303 Second St. South Tower San Francisco, CA 94107
Dear Committee Members:
Please accept these late-filed comments on behalf of the Society of Professional Journalists regarding privacy and computerized court records.
Summary
We write to urge you to provide the same level of public assess to court records to those who enter the courthouse via modem and computer as you do to those who enter the courthouse doors in person. Our members, journalists in print and broadcast media and in education, do daily battle to obtain information that is guaranteed public under statute and case law. If anything, automating the information system should help smooth the flow of information and not hinder it. Accordingly, we do not believe that public data provided electronically from court files should be edited in any fashion before it is received by off-site users, For example, if the courts make available via computers in their clerks' office the names, addresses and phone numbers of all the parties in a case, then the same information should be available via modem to off- site users.
Practical Concerns
We also have concerns that the providing of electronic records may become a profit center for financially strapped local governments to the detriment of the public. We are afraid that the cost of electronic access may become so prohibitive that it prevents many members of the public from obtaining court records electronically. We urge the committee to adopt a policy that limits costs for electronic access to the amount necessary to reimburse the court for its actual costs. Already, an ordinance has been adopted which will deny the public access to the same information that is contained in the court's computers. It also carries a price tag that will bar electronic access to most, who cannot pay the access fees. As we understand it, Los Angeles adopted a measure on Oct. 5 that provides for terms under which public data derived from court records will be made available. We understand that this data is not the same as that available in courthouse computers. The providers, which must share their profits with Los Angeles, are expected to charge high fees if they are expected to pay the county $1.2 million to $1.8 million a year in access fees. This is in addition to reimbursing the county for the $21,683 it cost to provide the data. As you are doubtless aware, the Los Angeles Times has filed a federal action under the First Amendment, raising substantial questions about the propriety and constitutionality of that arrangement.
Legal Concerns
In addition to the concerns raised in that action, we wish to provide these further thoughts about the legal problems of uncritically or incautiously recognizing "privacy rights" in otherwise public records. The right of the public and press to have nearly unfettered access to courts--their actions, their proceedings and the records of both--is a right of constitutional dimension that has been much discussed and can be little debated. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1984); Press-Enterprise v. Superior Court, 104 S.Ct. 819 (1984); Press Enterprise v. Superior Court, 106 S.Ct. 2735 (1986); In re: Estate of Hearst, 67 Cal.App.3d 821 (1977). Nor is there any principled difference between access to the proceedings themselves as described in and Press Enterprise I and II, and the records of the court's proceedings, as described in Hearst. Indeed, it may arguably be said that access to the records of what the court has before it, and what it may or has done, including all particulars, is of greater constitutional import than instant access to the courtroom at the time. The latter, while unquestionably vital to a free society, is transient; but if the public and press are denied access to the records, then both the individual proceeding and, crucially, the overall conduct of the court system, is forever lost to the public's conscience and memory and to the scholar's examination. Balanced against this is an as yet undefined "privacy" interest. Privacy is an expansive term, and the law recognizes it in many ways--from decisions about one's personal life as exemplified in Roe v. Wade, to the broad and somewhat indeterminate borders of the tort law of privacy, which embraces personal interests ranging from freedom from intrusions to a "right of publicity." Of course, our state Constitution in Article I, section 1 recognizes a right of privacy as well. However, in nearly all these instances, the interest of the individual is to keep private facts private. In the context of court records, however, the precise "privacy" interest is ill-defined. The confines of what is public and what is not are relatively well-established on both the civil and criminal side. Access to physical court files and indices of litigants is settled, as is the lack of access to civil records subject to proper seal orders and to some criminal records (e.g. juvenile records or information about victims of certain types of crimes). Notably, little if any information in public court files is not in fact already public elsewhere: litigants' names, addresses, phone numbers, the fact of their arrest or the crimes charged--this and other information is not within the zone of what is truly exclusive information, such as one's medical files, financial information or other closely held data. However, it is precisely the public information that is the current focus of a perceived need for "secrecy," despite the fact that the actual data will continue to be public at the courthouse, and indeed in many other places. The concern is not with what is or is not public, but to whom it is public or the use to which the information may be put. Thus "privacy" is the sense of truly private facts is not really at issue. Rather it is a desire to control public information, control exercised here not by the individual (as we often see in the personal credit or privacy act contexts) but by the government itself. It is that desire for governmental control that raises the constitutional flags. As the court in Westbrook v. Los Angeles Co. et al., 27 Cal. App. 4th 157 (1994) expressed it: "There is a qualitative difference between obtaining information from a specific docket or on a specified individual, [and] from obtaining docket information on every person against whom criminal charges are pending in the municipal court. ... It is the aggregate nature of the information which makes it valuable to respondent; it is that same quality which makes its dissemination constitutionally dangerous." That opinion seeks to preserve the public's right to the information at issue, but at the same time evinces a desire to render it only semipublic, based upon the form of the information and who wishes to use it for what purpose. However, the perceived privacy invasion is speculative, yet the remedy is to permanently seal off an entire avenue of information access because some actor might misuse it. This treads too close to the kind of analysis that prefers prior restraint to post-publication remedies, a mode of analysis universally condemned in First Amendment constitutional law, as well as in common law privacy cases. More importantly, this effort to create a class of otherwise public information that will be quasi-public, with distinctions dependent upon the form of the information and more importantly who has it and the use to which they wish to put it, is to tread upon thin constitutional ice. Government has an absolute duty to make its activities transparent to the public, within certain limited exceptions. Courts in particular have an affirmative duty to operate in as open an environment as the administration of justice will permit. Conversely, it is not the province of government to deem some users or uses of public information more or less worthy than others. No government actor may prefer some users or uses of public information. The sole question must be: is the particular datum about an individual public or is it not? The answer cannot be made to depend on where the user wants it (the courthouse or the computer), how they want it (in paper form or digital), nor to what use they wish to put it (the high minded academic or the purveyor of goods). Nor can the individual lay claim to a "right of privacy" to have information that is unquestionably public (e.g. the fact of their arrest) public at the courthouse but otherwise nonpublic in other forms, solely from a desire to make it difficult to find. If information is public, the government may not (partially) deem it otherwise. Moreover, the remedy for any invaded "privacy" interest lies in established private remedies in tort that can weigh individual cases and facts, not in diverting or restraining the free flow of information in an effort to prevent publication. To permit those kinds of distinctions is to invite government actors to make differentiations they may not constitutionally entertain. Once the government decides information is public, the government's discretion is at an end. The desire to influence how information is used, or by whom, is precisely what courts have routinely condemned on First Amendment grounds. See, e.g., Times-Picayune Pub. Corp. v. Lee, 15 Med.L.Rptr. 1713 (U.S.D.C., E.D.La. 1988); and see cases cited in Savage v. Pacific Gas & Electric Co., 21 Cal.App.4th 434, 453-454 (1988). We appreciate the committee's interest, and would be happy to participate in any further proceedings of the committee. We also thank the committee for accepting these late-filed comments.
Cordially,
James Wheaton Co-Chair, Society of Professional Journalists (NoCal) Freedom of Information Committee ```
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