The Supreme Court’s Rules of Public Access to Records of the Judicial Branch have been kind of obscure. But as digitization of court records proceeds, and as the rules on public access adapt, these rules will affect all of us as practitioners, and we need to understand them.
Under the proposed rules, there will be increased access to documents in general civil and criminal cases. But (as is now the case) more restricted access for some cases. Including family, commitment, orders for protection, harassment, delinquency felony, and child protection cases.
Access to documents will depend on two things: the case type and the type of document. Some documents will be available remotely via internet access; some documents will be available only at courthouse terminals; and some documents will be confidential and will not be accessible at all, except to the parties.
So, for example, there will be no remote access for documents in certain matters: order for protection, harassment/restraining orders, juvenile CHIPS and juvenile D-16 proceedings. The register of actions (ROA) and public documents for these types of cases will be available only at courthouses. For certain other cases – e.g., civil commitments – only the register of actions will be available remotely. At the next level, for family law cases and paternity cases post-adjudication, the register of actions and court-generated documents (like orders and notices) will be available remotely. The broadest remote access will be available for other civil and criminal cases. We will be able to review the ROA and all public documents for these files remotely. At our offices or after hours at home.
You will be able to access documents available at the courthouse from any courthouse in the state. So, for example, you will be able to review available documents filed in a Hennepin County case at the St. Louis County courthouse.
The advisory committee had considered more detailed distinctions in making access decisions. But it rejected that approach in favor of the simpler (although not exactly simple!) system that is proposed. This recognized that there are many different types of judicial documents (over 2000) and many different case types and sub-case types (as many as 196). So, requiring too many distinctions would impose significant costs for the needed technology and person-power and would increase the possibility of human error in handling documents.
The committee is recommending that changes to access be made on a prospective basis only, so that existing documents will not need to be reclassified.
One caveat: it is possible that the Supreme Court and Judicial Council could decide to impose fees for remote access.
One more caveat: access under the proposed rules will be “subject to the availability of technology.” We will learn what this means as things proceed.
A committee member submitted a minority report advocating for more restrictions on access based on privacy concerns.
You can review the committee’s report. (Warning: the lingo is a bit technical in places.)
Comments can be submitted on the proposed Public Access rules until March 2, 2015, and the Supreme Court will hold a hearing on them on March 17, 2015. (If you want to make a statement at the hearing, submit a request to appear so it is received by March 2, 2015.)
Advisory committee reports and proposed rules have been issued for a number of other sets of rules. I’ll have comments on some of them in the coming weeks.