Supreme Court decrees limit to online court record access

Jeff Shaw of Bounded Rationality called my attention to this: The Oklahoma Supreme Court has handed down decree yesterday that, effective immediately, will restrict online access to court records. The stated motive is to limit access to sensitive information that could be used in identity theft.

The decree forbids attorneys to cite certain personal identifiers in pleadings filed with the state court system -- e.g., addresses, SSNs, dates of birth. If this kind of information is essential to a pleading, it's to be provided separately and will be kept under seal. This part of the decree doesn't take effect for three months.

Section IV of the decree deals with online access. It takes immediate effect:

The Clerk of the Oklahoma Supreme Court, each district court clerk, and the Project Manager of the Oklahoma Court Information System are directed to immediately limit internet public access to court dockets only. The individual pleadings and other recorded documents filed of record in state court actions shall not be publicly displayed on the internet. Court documents may be viewed at the courthouse unless otherwise prohibited by law. This policy may be reviewed by this Court in the future.

This appears to mean that you will still be able to call up the docket for a case on OSCN and read through the case history -- when hearings were held, when documents were filed, the resolution of a case. For most of OSCN's history, that's all you would find on a district court case.

More recently, some filings were made available within a case's web page. For example, in researching my most recent UTW column, I was able to read a judge's ruling in a case by clicking a document link on the case's OSCN page. With this ruling, you will only be able to read those documents by going to the County Courthouse and requesting to read the file.

This decree doesn't really protect anyone's privacy. It simply allows convenient access to court records only to the attorneys who practice at a given courthouse; attorneys from other parts of the state or the country and members of the general public won't easily be able to access case information.

One of the other rationales for the change, mentioned in the dissent but not in the decree itself, is that until such information is available for all counties in Oklahoma, it shouldn't be available for any of them.

Open access to court records is essential to a fair and impartial justice system. Justice Yvonne Kauger wrote in her partial dissent:

The Court is obligated to provide the public with access to court records. The judiciary has long recognized that case file documents, unless sealed or otherwise restricted by statute or court rule, are available at the courthouse for public inspection.The common law right and the presumption of public access to court records relate to the public's right to monitor the functioning of our courts, thereby insuring quality, honesty, and respect for our legal system.

The dissent also notes the importance of electronic access to records to blogs and other forms of new media:

With the invention of each new method of conveying information, it becomes more difficult for the courts to seal and protect information without the individual cooperation of litigants and members of the Bar. Whether it is a development we welcome, the simple fact is that the tide of new media may not be ignored or dodged. Instead, we should make policy that contemplates this new reality. Given the public's increasing expectation of governmental transparency and its acclimation to the variety of new media, a strong philosophical distinction between documents available to the public at the courthouse and documents available to the public online becomes harder and harder to maintain. A blanket ban on posting copies of pleadings online, without consultation with the bench, the Bar, or the Legislature is a step too far, especially when in all likelihood we will lift this ban in the near future when we begin operating under a new case management system. If it is intellectually acceptable to post these documents for all counties, how can it be unacceptable to post them for some counties? The ban will not protect the court any further than the new redaction policy and its existing immunity. In fact, this temporary ban will do little more than have the undesirable effect of limiting the public's access to public information to which it has become accustomed ---- and creating a stir.

The worst thing about this policy is that it was handed down unilaterally, without opportunity for comment from members of the Bar, the Legislature, media (old or new), or the general public:

The Court made this decision with input only from the court clerks, others directly affected by the decision -- the bar, the bench, the legislature and the public were not consulted.... This public information which was previously available to the bench, bar, and litigants has been removed from viewing without any consideration for, or consultation with, lawyers and judges who use the information on a daily basis to do their jobs more efficiently or from public litigants attempting to seek legal redress.

I hope there will be enough outcry to reverse this decree, whether the Supreme Court does it or the Legislature does it for them.

UPDATE: Tyson Wynn has more:

In a day and age when we're moving to more and better online access to our government institutions, this step is unnecessary and unwise. Further, if the personal data has been ordered redacted, what is the harm in allowing court documents to be accessible online? Documents in the federal courts are almost all accessible online. Not all of Oklahoma's district courts post actual documents online, but they were advancing toward that end.