Internet access to federal judicial records would not include criminal files for at least another two years under a recommendation to be weighed this month by the federal judges who set policy for the judicial system. U.S. District Judge John Lungstrom, who oversaw the comment process during the past year, said the committee members who created the proposal were concerned about misuse of information to the “physical detriment of cooperating witnesses” in criminal cases. The same issues of witness safety generally aren’t raised in civil or bankruptcy cases, the other specific areas considered by the committee. Society of Professional Journalists Freedom of Information Committee Chairman Ian Marquand of KPAX-TV, Missoula, Mont., said he was “disappointed” at the panel’s reluctance to make criminal case information readily available online. He added that the sensitive information the panel seemed to worry about still would be accessible in paper form at a court clerk’s office unless it’s sealed. In that instance, it wouldn’t be available in either paper or electronic form. “Our point has been that if an ordinary citizen can go to the courthouse and see a document, there’s nothing wrong with that same citizen accessing the same document on the Web,” Marquand said. “That holds true whether the citizen is a journalist, a defendant’s business associate or his next-door neighbor.” Lungstrom said an additional reason the panel chose to treat civil and bankruptcy cases with the same online access as paper access – but to treat criminal cases differently – is that the first two type of cases often create a huge amount of paperwork that isn’t present in criminal files. Because of the abundance of paper filings, judges and clerks have been looking at how to alleviate that paper burden for a few years. Similar research into the viability of online criminal files hasn’t been done. The judge explained that the recommendation includes a caveat that the criminal case issue be revisited in two years, creating accountability. “That gives us a chance to look at it carefully with two years more of thought and come back and say, ‘is there truly a reason to treat criminal the same as civil?’” he said. Lungstrom’s subcommittee of seven federal judges and one lawyer spent the past year receiving comments, hearing testimony and weighing public access interests against privacy concerns. From November through January, the panel took written comments on the subject from 242 groups and individuals, including private citizens, privacy rights groups, investigators, attorneys, the financial services and journalists. SPJ submitted comments jointly with its Washington, D.C., Pro Chapter, the Reporters Committee for Freedom of the Press and the Radio & Television News Directors Association. The subcommittee then held a public hearing in March with 15 presentations. “The stakes the committees and the subcommittee have attempted to evaluate are the stakes of litigants, lawyers, the media and other people of public interest and the legitimate concerns, to the extent that they exist, about the privacy of people who participate in the court system,” Lungstrom said. “This was a true attempt to figure out what, on balance, is the public’s interest.” The Judicial Conference, a group of 27 federal judges, is expected to consider the proposal Sept. 11 at its biannual meeting. Lungstrom, of the U.S. District Court in Kansas, chaired both the subcommittee that developed the policy and the panel that referred it to the full conference. He said the conference may adopt the policy recommended by the committee, adopt some other policy or table the issue until its meeting next spring. Lungstrom added that he would be present at the meeting as chairman of the Committee on Court Administration and Case Management to answer any questions members of the conference may have about the inquiry process or the proposal itself. In addition to the recommendation that criminal files not be made available electronically, Lungstrom’s panel recommended that both civil and bankruptcy case files be available electronically to the same general extent they are available at the court. One caveat is that “personal data identifiers” such as Social Security numbers, bank account numbers, date of birth or names of minor children should be modified by the parties. Bankruptcy files available electronically would display only the last four digits of a person’s Social Security number, and the panel recommends that the Bankruptcy Code be amended to “establish privacy and security concerns as a basis for the sealing of a document.” The committee also recommended that appellate case files be treated the same as they would be treated at the trial level. Lungstrom said the speakers who represented journalism organizations especially impressed the panel and added, “Our feeling is we are not at all out of tune with the sentiments expressed (by the media representatives), but are finding some balance in a way that doesn’t create untoward dangers. “I want to stress our commitment to the idea that the public has the right of access to court records, and we should try to figure out a policy that
accommodates that as much as possible, with the reservation that there are some concerns about a limited area of privacy issues and this safety concern in the criminal area that troubles us.” Among the options proposed last year was a “level of access” concept for civil files that would have determined who had access to what part of the file and specifically listing what documents are available electronically in a “public file.” For bankruptcy case files, the panel’s options included severely limiting the definition of those who were allowed access to the files. None of those options were acceptable to SPJ and other media, who argued in written comments that “a sweeping policy that attempts to preemptively determine which materials should be public and which should not would inevitably be broadly drawn and would limit access to information that would otherwise be available to the public.” With the exception of the criminal case file recommendations, Marquand applauded the committee’s proposal. “The (subcommittee) took a common-sense approach – if it’s available at the courthouse, it should be available electronically, with reasonable precautions about information that’s clearly personal, like Social Security numbers.” Lungstrom said the Judicial Conference is not bound by the recommendation, but historically the conference pays deference to the amount of hours and time invested in researching the issues. “But whatever decision the Judicial Conference ultimately makes, it won’t please everybody. That’s just the nature of the situation,” said Lungstrom.
Karen E. Klein is a SPJ Pulliam/Kilgore intern at Baker and Hostetler, SPJ’s legal counsel in Washington, D.C. She is a second-year law student at Indiana University in Bloomington.
