Comments submitted by:
Michael Shames, Esq.
Barry Fraser, Esq.
Utility Consumers' Action Network ("UCAN") submits these comments in opposition to the Court Technology Committee's Draft Rule on Access to Electronic Records ("Draft Rule"). UCAN is a non-profit small consumer advocacy organization based in San Diego County. It has 38,000 members who are small business or residential customers of regulated utilities that serve the San Diego region. Since 1984, UCAN has advocated on behalf of small consumers on telecommunications, energy, computer and privacy issues. Its study of electronic commerce and privacy matters has led it to a number of very serious concerns about the Draft Rule.
The Draft Rule endorsed by the Court Technology Committee would require that all records a court makes available to the public also be made available electronically. This Draft Rule is actually the recommendation of only the minority of members of the Privacy and Access Subcommittee. The majority recommended an Alternate Draft Rule ("Alternate Rule") which would require electronic access only to specified index information in case files, exclusive of all non-public data and references to cases, courts or persons, other than the parties and their attorneys.
The intent of the Council to open up court records to facilitate public access is laudable. However, UCAN submits that the Draft Rule, as written, is flawed. First, the Draft Rule fails to take into account the differences between paper and electronic records, and as a result, amounts to a dangerous leap into technological waters that are uncharted and rapidly changing. The existence of unregulated and unaccountable vendors who could readily use and abuse such electronic data should preclude the Council from taking the steps proposed by the Draft Rule. Second, the Draft Rule, as written, fails to substantially further the policy of this state favoring open access to public records while opening the door to potentially devastating infringements upon individual privacy. Third, the Draft Rule is likely to interfere with the smooth and equitable functioning of the judicial process, by discouraging lawsuits with merit through the fear of disclosure of private facts, and encouraging frivolous lawsuits for the primary purpose of forcing private facts into the public record.
Accordingly, UCAN urges the Judicial Council to reject this Draft Rule, and instead adopt the Alternate Rule recommended by the majority of the Privacy and Access Subcommittee. The Alternate Rule would allow the court system to proceed cautiously with electronic dissemination of records until the full import of rapid technological changes, including the need for regulation or other accountability mechanisms in the information industry, can be determined.
II. The Draft Rule as written fails to take into account the differences between paper and electronic records, and may be a dangerous leap into technological waters that are uncharted and rapidly changing.
Often court records contain information about individual citizens which may be of a highly sensitive nature, and which usually is provided on an involuntary basis. A wide variety of sensitive personal information is routinely set forth in court records, including personal financial information, family histories, medical and health information, and many other private facts. Court records often reveal facts about individuals other than the parties of record, and may include sensitive information concerning third parties who have been deposed or summoned for jury duty.
Important public policy reasons justify the traditional availability of these records in paper form for public inspection. Supporters of the Draft Rule argue these same public policy justifications require that all court records now be made available in electronic form. However, this argument ignores the fact that there are significant differences between records on paper and records in computer format.
The Opposing Argument attached to the Draft Rule circulated by the Judicial Council ("Opposing Argument") identifies three important differences between paper and electronic records: ease of access, ease of compilation, and ease of wholesale duplication. Thus, electronic records may be accessed, searched, culled, reorganized, sorted, and transmitted by computer with ease, quickness, and very little expense. These tasks are much more difficult, time-consuming, and costly when paper records are involved. Moreover, there is a rapidly growing market for personalized marketing databases of names and addresses, especially those names and addresses which identify targeted segments of potential customers. Unfortunately, this database industry is essentially unregulated, and there is a glaring lack of accountability among many of these "information vendors."
One likely repercussion of making court records available electronically is that they would become attractive to these information vendors, who will create lists of individuals linked to the various types of personal financial, family or medical information found in court records. For example, a "singles" or "dating" services would most likely be very eager to purchase lists of individuals recently involved in divorce cases, especially if those individuals could be sorted into various financial categories. Less benign uses, by employers, social clubs, insurance companies, or other commercial enterprises, would lead to consumers being denied services or employment without their knowing whether or why denial occurred. Currently, there is no accountability mechanism which would prevent these lists from being developed and sold, or would limit the ways that they may be used.
This market for targeted databases has undergone tremendous growth over the past few years, growth directly linked to the rapid surge of computers and high technology communications systems. There is rapid flux and change in these areas, and it is very difficult to predict with any precision the future direction of this industry. There have been indications of increasing consumer unhappiness and discontent with such uses of personal information. The technology as well as the regulatory future of this area is simply impossible to chart with any reliability.
The Opposing Argument rightly calls for a "conservative" approach to electronic dissemination of court records until the true direction of the technology, as well as citizen confidence, is established. Until greater accountability by these information vendors is established, the Alternate Draft rule is vastly superior. California should not, in a rush to establish cutting-edge policies, rashly implement untested rules which may undermine citizen confidence in the court system, and perhaps cause substantial harm to citizens through excessive access to private information.
III. The Draft Rule fails to substantially further the policy of this state favoring open access to public records while opening the door to potentially devastating infringements upon individual privacy.
The public policy underpinning for the Draft Rule is that of encouraging open access to public records. The availability of court records for public scrutiny is essential to our democratic form of government because it allows the community to monitor what is happening in the courts. However, this important objective must always be balanced with other competing interests. One of these interests is the right to privacy.
Individuals in California have a deep and broad-based interest in the right to protect their personal information from public disclosure. California is one of the few states that expressly guarantees a right to privacy in its Constitution. Moreover, many federal and state laws provide protection for specific types of information, such as credit histories, medical records, and employment records. Even cable television viewing choices and video tape rentals are protected from disclosure. However, any of these types of information, once entered into record in a court proceeding, become public record and available for anyone to scrutinize.
Such has always been the case, because court documents have always been available for public scrutiny in paper form. However, in the case of paper records, it is not economically feasible for a medical marketing firm to compile a list of all parties in personal injury actions that have suffered specific types of injury, or for a securities firm to purchase a list, compiled from probate records, of relatives with new discretionary income. Yet, once such records become available in electronic format, it becomes economically feasible and even highly profitable to create these types of lists.
The Draft Rule would balance these competing interests such that the public access interest outweighs any privacy interest. But what is absent to justify this balancing act is any compelling need for electronic access to these records. Granted, it might be more convenient for the community to search the full electronic record in order to monitor the court system. However, are Californians prepared to accept this dilution their right to privacy in the interest of mere convenience?
The Alternative Rule, which would make only index information available in electronic form, is a better balancing of these two competing interests. This alternative furthers the interest in public access by making summary court information available in a more convenient electronic form. Index information may be easily inspected and specific records identified, which may then be retrieved on a case by case basis. However, the mass cultivation of personal information from court records is discouraged, thus providing some measure of protection for such sensitive data. This results in a better balance between these two competing interests.
IV. The Draft Rule is likely to interfere with the smooth and equitable functioning of the judicial process.
The awkward imbalance of competing interests created by the Draft Rule will likely be subject to manipulation, resulting in both the repression of judicial access for cases with merit, and in the escalation of frivolous lawsuits. Individuals who are adverse to public scrutiny may avoid legitimate recourse to the court system, particularly if onerous incidences of data abuse from electronic court records become widely publicized.
It is likely that this threat of disclosure would be used to discourage plaintiffs from bringing cases which have merit. The astute auto insurance defense attorney will never fail to remind a potential plaintiff that her injuries will be laid out in great detail in discovery, and that life and health insurers collect such information, and take it into account in setting insurance premiums. Under the Draft Rule, part of the price that individuals must pay for privacy will be reduced access to the California courts.
Improper balancing of these interests may also result in converse types of anomalies. Disgruntled spouses or relatives may initiate lawsuits merely to force private information about an individual into the public record. Other situations may arise in which the primary purpose of the litigation is the disclosure of information, rather than the resolution of a dispute.
It is impossible to predict the extent of such judicial aberrance. However, the likelihood of such misuse of the court system cannot be discounted. The Draft Rule poses this potential for abuse and does not provide adequate safeguards against such likely scenarios. The prudent course is for the Judicial Council to effect the conversion to paperless electronic records on a step-by-step basis. The Alternative Rule is a better first step, because it affords the court system the opportunity to monitor for judicial aberrations and ensure accountability in information usage.
The Draft Rule must be rejected because it fails to account for the differences between paper and electronic records or the existence of unregulated and unaccountable information vendors who might readily abuse such electronic data. Moreover, it fails to adequately balance the competing interests of access to public records and the right to privacy, and will likely upset the smooth and equitable functioning of the judicial process in California.
UCAN urges the Judicial Council to adopt instead the Alternate Rule recommended by the majority of the Privacy and Access Subcommittee. The Alternate Rule would allow the court system to proceed cautiously with electronic dissemination of records until the full import of rapid technological changes, including the need for regulation or other accountability mechanisms in the information industry, can be determined.
Michael Shames, Esq.
Barry Fraser, Esq.
on behalf of:
Utility Consumers' Action Network
3100 - 5th Ave., Suite B
San Diego, CA 92103
(619) 696-7477 (fax)