Judicial records are a classic "public record."
Part of the legitimacy of judicial decisions comes from the fact that decisions
are made as part of an open process. The records of cases, including allegations
made and evidence considered, should generally be available for public inspection.
Judicial records have typically been cloaked somewhat by the practical
difficulty and expense of retrieving paper records from court clerks and then copying
them. With the advent of electronic filing and submission of evidence,
court records will more often be relatively easy to access. While this is a clear
benefit to administration, openness, and accountability of the court
system, it raises the specter that some information in court records will be easily
available too broadly.
Because of this, appearing in court may create a greater risk that private
information will be revealed. Court records could facilitate
invasions of privacy, among many other harms, including idenity
fraud. People should not be required to expose personal
and private facts to the world just to testify or assert legitimate
claims or defenses in court. Potential exposure of private
facts about opponents should never become a litigation strategy.
Though judicial records should generally be kept open to the extent possible,
courts will have to come to terms with the need for issuing protective orders more
often in order to prevent inappropriate exposure of private facts about litigants
and witnesses. They will need to be watchful of legitimate privacy claims,
while observing the strong public interest in open judicial records.
Comment Page Web site, Subcommittee on Privacy and Electronic Access to Case
Files, Court Administration and Case Management Committee, Judicial Conference of the
Courts Consider Privacy Perils of Electronic Filing, Jonathan Groner,
Legal Times (January 16, 2001)
Privacy and Access to
Electronic Case Files in the Federal Courts, Office of Judges Programs,
Administrative Office of the United States Courts (December 15, 1999) (html version)