• Specific Year
    Any

Cannon, Andrew --- "Politics to Control Electronic Acces to Court Databases" [2004] UTSLawRw 3; (2004) 6 University of Technology Sydney Law Review 37


POLICIES TO CONTROL ELECTRONIC ACCESS TO COURT DATABASES

Andrew Cannon*

A

s courts move towards electronic filing it is assumed that a parallel development will be to allow electronic access to court files. There has

been recent discussion, in this country,[1]

America,[2]

Canada[3]

and Europe

about the proper basis for allowing electronic access to the data that is kept on court files. If there is to be some limitation on access, then a principled basis of determining that limitation needs to be in place when the architecture of data capture and storage is designed, to ensure that only the data that is intended to be available is in fact available. Ideally the policy will be designed to allow access to occur automatically, without the need to manually vet records.

The purpose of this note is to develop some principles to differentiate between what should be accessible and what should not. I have not attempted to relate this discussion of broad principle to the existing legal regime controlling access.

The difference between manual access to paper databases and electronic access to electronic databases is important

The present ability to search court databases has substantial structural impediments.4 The data is mostly stored on paper and whether it is stored on paper or by electronic means, access can only be obtained through the

assistance of court staff. This can be done by written request, or by oral request by attending in person at the court registry. Although there may be legislative policies allowing free access, the need for court staff to actually find and make the information available limits the amount of data that can be searched in any period and also provides opportunities for the court staff to consider whether the data should be accessed.

Manual access by the public is relatively restricted. Courts are used to dealing with the legal profession. In practice, court staff are more likely to be inquisitive about the purpose of a request for information from a member of the public than they would be with a request from a familiar legal user. Also, such legal users have professional standards and owe obligations to the court which themselves act as a protection against misuse of the data.

Another distinction between obtaining access through paper systems, compared to electronic systems, is the ability to know about the existence of the data. The knowledge of whether identities of particular people or other specific information are on the database in a paper system depends upon manual searching of paper indices. This can be time consuming and may be prohibitively so in courts dealing with large numbers of matters. In contrast electronic data can readily be searched by name, any word or other target information and will yield almost instantaneous comprehensive information about the existence of information fitting the specified parameters. The existence of information on electronic databases can be found readily by electronic searching and once its existence is ascertained the information itself is readily obtained.

Electronic access, unless limited to certain users, sweeps away all the practical impediments to the obtaining of information and may allow any person an almost unfettered ability to find any data and types of data within the court database. This much wider access to data leads therefore to the need to consider whether the access could lead to abuse which has not become apparent under the unstated but substantial practical impediments to access in present systems.

Freedom of Information v Privacy

In the darkness of secrecy, sinister interest and evil in every shape have

full swing. Only in proportion as publicity has place, can any of the checks applicable to judicial injustice operate. Where there is no publicity, there

is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.[5]

This undoubted truth—that a central plank of a just courts system

is that it perform its trial work in public—is taken by some as a simple solution to this issue: namely the policy should be to allow open access to

all information on the court file. This notion might have survived without criticism when the practical obscurity of paper court files provided a de facto protection from unfettered access to them. It is a policy that may cause serious harm when all the information on court files is freely available in fact.

Here are some examples of the potential for abuse:

Identity Mining. The American literature is most concerned about the potential for obtaining personal particulars sufficient for a stranger to build up a false identity in someone else’s name and obtain credit cards to obtain goods and obtain other advantages in the name of the victim.6 Apparently bankruptcy actions in the United States require the disclosure of bank account and social security information. Access to this information makes identity theft relatively easy. It is conceivable that some court files in Australia could include information that could be abused in this way.

Conmen may track large damages claim files to identify the recipients

of large financial awards, and then attempt to trick some of the awarded damages from them.

Thieves might conceivably identify the existence and whereabouts of

valuable property from de facto relationship and matrimonial disputes over property.

Unscrupulous people might identify litigants who have suffered trauma

and are vulnerable to exploitation.

Marketing analysts may mine the data for the names and addresses of potential customers and target them for unwanted selling attention.

Detailed personal information about individuals, their date of birth,

marriage status, family, employment and other details can now be purchased at sites such as www.cybersleuther.com, http://web- detective.com and www.courtexpress.com.7 Much of this is drawn from court records. There seems to be no obvious policy reason why this information should be so freely available and substantial privacy reasons to say it should not.

Sexual predators may identify potential victims.

People hiding from partners of previous violent relationships might be tracked down from address and employment information in court files.

People who are charged with offences but acquitted may still suffer adverse inferences from the existence of the charge on the court record.

Unfettered electronic access to data allows the potential for data being searched for such purposes. Access for these purposes is undesirable. Policies to minimise the potential for such abuses should be in place. These policies will need to consider many factors, including the purpose

for which the information was collected and used and the purpose the inquirer intends for it.

The Purpose for which the Information was Collected Where the purpose for which information is collected is to decide a dispute between two parties, or guilt in relation to a criminal charge, then Bentham’s ringing words quoted above apply to that trial process. The information that the court has as part of the trial process must be freely open to access by the public at large, viz:

The evidence and the judgement at a trial so that the hearing is conducted

in the open, the court is accountable, the evidence on which findings are made is available for others to assess and that wrongs are exposed and have an informative and precedent function.

The pleadings to define the dispute both as part of the function above

and for res judicata, to prevent multiplicity of actions over the same dispute. However there is a danger that if pleadings are freely available people may use the privilege that has traditionally attached to them as

a protection to allow a safe publication of defamatory material. This is already a possibility but the danger here is the consequence of the much wider availability of material that can be accessed by electronic means.

The identity of the parties in some cases. However, much insurance-

based litigation is conducted in the name of parties who have no interest in it, so that on occasions, publishing the name of a party may be misleading. For example, a driver in a motor vehicle accident may only be partly at faulty but the litigation to access the personal injury insurer that stands behind him or her may result in a large judgement against the driver.

Even within files that go to trial there may be personal and sensitive information that has reached the file in pretrial processes that need not be freely released to the public at large to satisfy the principle of openness. An example of this is medical reports containing information relevant for the trial but also including information about medical conditions unrelated to the issue at trial. Personal details such as bank accounts, date of birth, family information, and commercially sensitive information may be relevant at trial, but it may not be necessary to make them available to the public at large to still leave the process open in the Bentham sense. This may be dealt with by suppression orders but often in the relative solitude of an ongoing trial sensitive information is introduced to the public record without thought to the implications of free public access.

However, trials are a small part of the work of a court. In civil jurisdictions in numerical terms the more important role is the upholding and enforcement of commercial obligations and property rights. This

is essential to allow the market economy to thrive.8 “For the economy,

legal certainty and effective legal protection also enhance the security of investments thereby promoting the willingness to invest, both abroad and domestically.”[9]. The extension of credit is the lifeblood of modern commerce and is dependant on reasonable prospects of recovering it.10 This can be achieved by assessment of borrowers’ ability to repay and forcible collection where they are able. Where they cannot bankruptcy offers a system to manage defaulting debtors’ affairs and eventually rehabilitate them. Taking South Australia as an example, the following table verifies that

the role of first instance (non-appeal) state courts is primarily enforcing uncontested obligations, not determining the extent of obligations. In the first column the first instance defended work of all three state courts, the Supreme, District and Magistrates Court has been totalled, the second column is the uncontested work in the Magistrates Court (overwhelmingly, uncontested commercial debt).

First instance case loads of state courts in South Australia

Year
Total defended claims
all courts
Magistrates Court uncontested
Total claims
Defended claims as portion of total
1996/7
8,575
42,450
51,025
17%
1998/9
7,829
46,932
54,761
14%

Source: internal Courts Administration Authority data. Total contested claims is the total

of all first instance cases in the Supreme and District Courts where almost all are defended, and the defended cases in the Magistrates Court. The Magistrates court figures entered

under 1996/7 are in fact for the calendar year 1997. Full figures in the Magistrates Court are not available for 1997/8 due to disruption caused by a computer upgrade. All claims filed but not defended are counted as uncontested claims. This would result in a slight overstatement as some claims are not served, but interviews with debt-collecting solicitors suggest most claims filed are served.

This confirms that the bulk of the work of the first instance courts in terms of cases filed is converting uncontested debt obligations to a judgement and enforcing it (on these figures about eighty five per cent). The remaining fifteen per cent are the contested claims and the main work of judges and magistrates is to determine the existence and extent of contested obligations. Of the contested claims only some ten per cent go to judicial verdict. [11]This means only 1.5 per cent of claims that are commenced go

to verdict. The main use of the court is not for dispute resolution. It is to obtain a state sanctioned recognition of an obligation so that if it is not satisfied the state will exercise its power over the assets or income of the judgement debtor to satisfy the judgement. Dispute resolution is an incident of this core process to determine the extent of the minority of contested obligations. The Bentham view has clear application to 1.5 per cent of the work of the court. For the other 98.5 per cent of the work more sophisticated policies need to be developed. A key factor here is the purpose for which the information is sought by the public.

The Purpose for which the Information is Sought

There are many acceptable purposes for the use of information on non-trial court files but some caution may be necessary. Some of these purposes are:

identifying businesses that have regular adverse claims made against

them in the conduct of their commercial activities

due diligence checks of parties to large contracts

identifying repetitive personal injury claimants

identifying bad tenancy risks by seeking information about prior actions in tenancy cases

identifying debtors who are unable to pay court judgements

identifying potential employees who have a relevant criminal conviction before employing them.

These purposes are legitimate. The first caution is that the information may be misleading. The mere existence of court files may give a misleading impression. The fact of suing or being sued may not be a reliable indicator of anything. A case may indicate nothing more than insurance litigation conducted in an insured’s name, or a number of cases in the same litigant’s name may be a tiny percentage of potential cases in a large turnover business. The first issue is whether information for purposes of this type should be available in files where no judgement has been obtained. The information on the file is at that point in the nature of untested allegations. The contrary view might be that where there is smoke there may be fire and the existence of such allegations in a matter that has gone as far as

a claim in a court is useful information in assessing commercial risks. It also may be legitimately helpful information in prosecuting and defending other claims. Whichever view is taken here there are sound reasons to warn people accessing this information of the dangers in interpreting it.

The existence of a judgement may be misleading. A judgement may be obtained by default and without a defendant’s knowledge and be set aside

as soon as it comes to the defendant’s attention. A policy issue here is whether the courts should limit the information made available that could be used for these purposes and whether they should require corrections where a judgement is set aside. Again in making information available the courts should consider whether any qualification of the conclusions that can be drawn from it should be given.

Other types of data collection may have dangers for the court rather than the parties. This may be useful in some hands but may be regarded as undesirable in others. This is information about the court’s processing of claims, such as:

• Profiling the decisions made by particular judicial officers.

• Identifying workloads of particular judges and courts.

• Identifying case flow and delay in various courts.

There may be legitimate purposes for information of this sort being gathered. There are obvious dangers in it being collected uncritically and ways it could be used that are obviously deleterious to courts, in allowing judicial profiling to assist forum shopping and to attack particular judicial officers and particular courts.

The above list of risks is not comprehensive and it may be that some of the identified risks do not materialise. However, it is sufficient for this purpose to identify the risks and to conclude that some restriction on access to information held by courts is appropriate. In case the tone brief diversion to consider whether there are benefits in this new way of maintaining court files.

The Benefits of Maintaining Electronic Files and

Allowing Electronic Access to them

Only King Canute and Ned Lud would suggest that electronic files and access are not inevitable—and they will be swept aside by the incoming tide of technology. The better answer is that for the courts to fulfil their important role in establishing community standards they need to publish their judgements. They give public reasons for their decisions and an appeal system maintains consistency of approach and the proper application of established principles. Where cases attract publicity they inform the wider community about the existence of these standards. Where one party successfully asserts a wrong has been done the attendant publicity may assist others who have suffered the same wrong. The risk of ad- verse publicity has a substantial deterrent effect on business. The adverse credit rating effect of a judgement deters debtors from not paying. The proof of guilt and punishment of criminals satisfies community anger and deters crime.

Electronic access has the potential to enable courts to conduct their work in public. At the moment few people in fact attend courts. The public knowledge of court judgements is limited to occasional media reports

of uncertain accuracy. Electronic access allows courts to make accurate information about their work much more widely available. This includes not only judgements but also ready access to forms, rules of practice and procedure and links to appropriate advice. Such access can enhance access to courts, confidence and public trust in them and make courts more properly accountable.

Methods of Restricting Electronic Access to Court

Databases

Methods of restricting access ideally will be designed to allow the process of access to occur without the need of manual vetting of information. These policy issues need to be considered as part of the architecture of court databases. There are two obvious approaches to restricting access. The first is to have the information stored at different levels and the other

is to allow different access to different classes of people.

The computer record of each file could be divided into three levels of access:

Level A: In civil cases pleadings and orders and in criminal cases charges in relation to which there is a finding of guilt. Transcript of evidence, exhibits, reasons and judgements respectively given at a trial (other than

a preliminary examination, voir dire or closed court) and sentencing remarks and sentences. Courts hearing evidence should think about whether any of the evidence contains sensitive material that is so remote from the main issues that it should be assigned to level B. Court forms could be constructed so that the parties’ personal information other than names, such as addresses, date of birth is separately stored from the pleadings at level B.

Level B: All other material that is not suppressed by order or operation of law. An example is personal injury particulars that are filed to assist the court but may include personal information that is not needed for general search purposes. In criminal cases charge sheets where no guilt has been established. Details of parties personal information such as addresses and date of birth could be stored at this level.

Level C: All material that is suppressed by order or operation of law. Once the levels of information storage are in place automatic data searching can be restricted to a varied extent depending on the policy view of the court. A restrictive policy would allow access to levels A and B only to people who can establish knowledge of the existence of the particular file, e.g. by identifying the parties and the correct file number. Typical court databases identify individual files by the names of the parties and a unique number, issued consecutively to files commenced each year. Access to the information on individual files could be limited to people who can supply enough of that information to imply that they have particular knowledge of the existence of that file. This is in effect restricting access

to the information that the information exists. If a restriction such as this were adopted a necessary corollary would be to ensure that cause lists, and other information about matters were published with the parties’ names but no file numbers. A weakness in such a restriction would be that a search of cause lists could identify the parties’ names and a series of search requests for each potential file number matched to those names could be undertaken. A bar on multiple searching by each user could minimise this risk.

Limiting access by knowledge of the file number is the position in Belgium and this policy largely restricts access to parties.12 Under this policy search requests from the public would be manually assessed to allow access to level A for purposes that are seen as legitimate.13 Judgements in cases determined at trial would be published and made freely available.

A more generous access would allow anyone access to level A and restrict access to level B to people who know the names of the parties and the correct file number. Concerns about abuse can be met in this position by restricting classes of information that are abused to storage at level B. This

is a flexible approach, which allows a principled balance to be maintained between access to information and respecting the privacy of information to avoid abuses of access to it.

Courts sometimes make information available (at a fee) to credit- referencing agencies.14 They should ensure that the information is indeed a reflection of inability to pay debts. For example the existence of judgements against people may only reflect that they were insured and litigation was conducted in their names, or that they fought a case on an issue of principle but lost. The judgement may be paid. The judgement may later be set aside.

A better indicator of inability to pay than a judgement is an unsatisfied enforcement process. That is the information that should be supplied for this purpose. If information of this type is sold for credit-referencing purposes a condition should be that the information is retracted where the judgement upon which the enforcement was based is set aside.

If information of this type is made available to some it should be available to all on the same terms. This is public information and courts may have a legitimate purpose in letting people know if debtors are unable to pay their debts. This knowledge may allow others to order their affairs by avoiding advancing credit to these people and avoiding wasting time and expense on fruitless legal suits against them. Courts have no business in granting a commercial provider of information a monopoly of their databases. However one advantage to accuracy of the commercial, repeat user is the ability to insist on a retraction if the judgement is set aside.

For the one-off searcher there is no obvious way to correct the information when it later changes. Apart from a disclaimer, there is no obvious remedy for this problem.

Transparency of Access Policies

Now that information is so much more freely available and transferable, courts need to be clear on their access policies so that they can ensure that parties who supply information know the purposes for which it might be used. This is especially the case because probably more than half the parties to court actions are not there by choice.15 At the time of filing a claim, or a defence, a party should be given a statement of the access policy of the court:

Parties accessing information should be warned about possible inaccuracies in the information16 and where information is given then consideration should be given to automatically forwarding alterations where the court file is substantially changed, e.g. if a judgement is subsequently set aside. This suggests that searches of the court file should be logged and another reason for this is to enable investigation of misuses of information obtained from the court.

Courts need to ensure their policies on access to information are appropriate to the changing world of information technology or else they may find themselves as defendants in suits for damages caused by improper release of information.


* Adjunct Associate Professor, Flinders University School of Law, Deputy Chief Magistrate

South Australia.

[1] This is partly repetitive of Andrew Cannon, “Policies to Control Electronic Access to

Court Databases” (2001) 11 (2) JJA 100. Other discussion can be found in Kate Marquess,

“Open Court” (2001) 54 (April) ABA Journal; Andrew Cannon, “A Suggested Policy to

Control Electronic Access to Court Databases”, 11 JJA 3, 1; Anne Wallace, “Courts On-

Line: Public Access to the Electronic Record” (2000) 10(6) JJA 94, November 2000, and an article by the Privacy Commissioner on NSW in “The Judicial Review” Journal of the Judicial Commission of New South Wales (2002) 6(1). (I do not suggest these and the following are a comprehensive list).

[2] Martha Steketee and Alan Carlson, “Developing CCJ/COSCA Guidelines for Public

Access to Court Records: A National Project to Assist State Courts” State Justice Institute, Developing a Model Written Policy Governing Access to Court Records, <http://www.courtaccess. org/modelpolicy/> at September 2003; Diane Apa, “Common Law Right of Public Access— The Third Circuit Limits its Expansive Approach to the Common-Law Right of Public

Access to Judicial Records”, (1994) 39 Vill L.R. 981; Jennen, Nelson and Roberts, Privacy and Public Access to Electronic Court Information—A Guide to Policy Decisions for State Courts

(1995); Kyla Kitajima, “Electronic Filing and Informational Privacy” (2000) 27 (Spring) Hastings Constitutional Law Quarterly, 563.

[3] Kitely, Open Courts, Electronic Access to Court Records, and Privacy (2003) prepared for the Canadian Judicial Council <http://www.cjc-ccm.gc.ca/english/publications/OpenCourts-2- EN.pdf> accessed September 2003.

[4] Known as “Practical Obscurity” in Canada and the USA—see Kitely, ibid 28, 88.

5 Attorney General of Nova Scotia v MacIntyre (1982) 1 SCR 175 quoting from Bentham.

Kitely, above n 3, 7.

[6] <http://www.consumer.gov/idtheft>

[7] Kitely, above n 3, 24 para 66.

[8] B.G.M Main, “An Economic Perspective on the Costs of Civil Justice”, 5(4) The Reform of

Civil Justice, Hume Papers on Public Policy 1, 1997, 1.

9 P Gottwald, “Civil Justice Reform: Access, Cost, and Expedition. The German

Perspective”, in Adrian Zuckerman (ed), S Chiarloni, and P Gottwald, (consultant eds),

Civil Justice Crisis, Oxford University Press, Oxford 1999, 222.

[10] R.A. Kagan, “The Routinization of Debt Collection: An Essay on Social Change in

Conflict in the Courts” 18 Law and Society Review 323, 1984, 324.

[11] In a sample of three months, defended general claims in the Adelaide Civil Registry of the Magistrates Court in SA in1992 tracked to conclusion, only twenty seven out of the total sample of 379 had a trial commenced (seven per cent). In a similar sample in 1996, thirty one out of 215 (fifteen per cent had a trial commenced. Williams Goldsmith and

Browne, “The Cost of Civil Litigation before Intermediate Courts in Australia” (1992) AIJA

[45] found that of cases commenced in the samples in Victoria and Queensland, ten per cent

went to trial. Professor Judith, then of the University of Southern California, in “Alternative Dispute Resolution and Adjudication; A Glimpse at Changes in the United States”, an unpublished paper delivered to the Litigation Reform Commission conference, Brisbane

[1996], p. 4, reported that research in America showed less than four per cent of civil cases go to verdict. The balance do not all settle—some are summarily determined or are finalised by default.

12 <http://www.juridat.be> .

[13] Cannon, above n 1, “A Suggested Policy to Control Electronic Access to Court

Databases”.

[14] The Courts Administration Authority in South Australia sells lists of default judgements to a credit referencing agency.

15 Defendants in criminal and civil cases presumably do not choose to be involved and

a great deal of litigation, by insurers recovering payouts and injured people suing people to seek compensation from their insurers is conducted in parties’ names without them choosing to be involved.

[16] For a suggested disclaimer and warning to parties see Cannon, above n 13.

Download

No downloadable files available