online access to court records: some observations on privacy blair stewart assistant commissioner...

Online Access to Court Records:

Some Observations on Privacy

Blair StewartAssistant CommissionerOffice of the Privacy Commissioner

Contribution to

The ARANZ Lecture 2005

What I’m speaking on

Just:• On-line access to court records

I don’t intend to say anything on the law or other aspects of the general topic, but happy to answer questions or speak more broadly in discussion time

Why the interest in on-line access?

• Technology neutral but powerful• Change face of public

administration (c.f. Public Records Bill)

What are Court records?

• Judgments• Case documents (e.g. pleadings)• Exhibits

• Information on court administrative systems?

What are the purposes of such records?

Purposes of:• Records• Access

Purposes continue

Purposes may differ between: • Judgments• Case documents• Exhibits• Administrative information

What is meant by on-line access

• Free? Subscription?• By courts themselves? Secondary

publishers?• Bulk release? Individual search?• Prospectively? Scan back copies?

Some privacy issues

• Issues with particular courts and tribunals and case types may differ (e.g. criminal; family; coroners, employment)

• Bulk release and automated harvesting v. individualised search

Some privacy issues

Googlethe enemy ofPracticalObscurity

A few other privacy issues

• People caught in the cross-fire who may be name searched (witnesses, others referred to)

• Identity theft• Sensitive information• Personal safety• Secondary uses

Solutions?

• Others have recommended a “go slow” approach, precautionary principle

• Technological fixes to some issues? Example minimizing data harvesting

• Limiting what is posted on-line• Redacting certain details, manually

or automatically• Restrictions on access, use• Data laboratories for research• Statistical and other accountabilities

Privacy Impact Assessment

• If a major move to putting records on-line mooted, a PIA should be undertaken

• Administrators should take responsibility to understand the effects and take appropriate measures to protect privacy interests, as they ensure that other genuine (and not spurious) public interests are given effect to

Conclusion

• Identify purpose of records, and purpose of access

• Central value of open justice as expressed through public hearings does not necessarily mean unfettered access to records

• Task to understand the effects and craft innovative responses to protect all the various public interests at issue

Some US resources

• “Public Records on the Internet: the Privacy Dilemma” www.privacyrights.org/ar/onlinepubrecs.htm

• Minnesota Supreme Court Advisory Committee report (2004) www.courtaccess.org/states/mn/documents/mn-accessreport-2004.pdf