• October 21, 2014
Impatiens Hawkeri, b/k/a Impatients...

Impatiens Hawkeri, b/k/a Impatients…

Update (October 21, 2014): Today Minnesota Lawyer quoted Minnesota Supreme Court Justice Barry Anderson following up on a Minnesota Lawyer post that, in turn, followed up on my Minnesota Litigator post below (link here, behind a paywall to the Minnesota Lawyer post).

Minnesota Lawyer quotes Justice Anderson is as saying, “To the extent that there is a suggestion that the judges are not interested or resist the move [to electronic access] that’s just not correct.”

I should perhaps clarify that there is no doubt in my mind that many Minnesota judges are very much in favor of public and remote access to court files and the sooner, the better. But, still, I highlight the language in the original post below, which suggests that the judicial branch has “begun discussing the possibility of providing remote access to court documents.”

Again, there is certainly no technological impediment to remote access. And, as far as the extremely important point about confidentiality of some documents in the court file, no one has explained to me how our federal courts seem to manage quite well but our state court system cannot do likewise.

I understand that the volume of confidential data in the state court system, plus the more limited resources of the state court system, present far more difficult hurdles than the federal court system. But, again, I hope the issue is not WHETHER to have state-wide remote access to court files but it is WHEN we will have it…

Original post (October 13, 2014)(under subject line: Will Someone Explain Why the Minnesota State Court System Cannot Make Civil Filings Public): Answer: No. Not really. Not for a VERY LONG TIME…

Beau Berentson, Director of Minn. Judicial Branch Communications and Public Affairs wrote me letter this past week: “Looking ahead, we have…begun discussing the possibility of providing remote access to court documents.” (emphasis added).

Berentson continues: “The system we will need to build will be far more sophisticated then [sic] the federal court’s PACER system. Unlike the federal courts, many cases in Minnesota district court are either confidential case types or contain confidential documents.”

Who ever heard of federal courts dealing with, ummm, terrorism, organized crime, trade secrets, allegations of corporate espionage, social security numbers, credit card data breaches, health records, private tax records, or embarrassing private information where privacy interests outweigh prurient public curiosity? If I had the time, I’d link to hundreds of federal cases dealing with the most important confidential and secret information imaginable….But I hope you get the point.

In short, I am not buying the Minnesota Judicial Branch’s excuses and foot-dragging. Neither should you.

The most troubling aspect of Mr. Berentson’s letter is not that the process of remote access to Minnesota court filings is going to move forward at a glacial speed. Let’s give the government the benefit of the doubt that there are many stakeholders and “it is far more important that the Branch gets this process done right than that we get it done quickly.” It is hard to disagree with that.

Far more concerning and more serious, however, is Mr. Berentson’s clear implication that the project may never be started in the first place.

Make no mistake: the problem and the delay with remote access to Minnesota state court records is policy. It is not technology. The problem is not, “How do we keep confidential records confidential?” The problem is, “Do Minnesota judges want Minnesotan’s to be able to have easy access to public court records?”

The court system spends a great deal of time talking about the importance of keeping personal and confidential data confidential, which is uncontroversial.

They do not articulate concerns that are less meritorious but perhaps of greater concern to some decision-makers.

Specifically, if the public knew how overwhelmed some of our courts are and if the public saw, firsthand, how this negatively impacts the administration of justice and the quality of the out-put, the judging, this might shake up some stake-holders in the decision-making process on the question of remote access to public court files. Minnesota courts are forced to decide important issues in very little time and without the deep financial/administrative support that, say, a general counsel has at a large company (or lawyers have at large law firms).

If the public could easily evaluate the quality of the work product that issues from our court system every day, I am not saying that “heads would roll.” But I am saying that some might. And some might be very afraid of that. And, finally, this should obviously add urgency to the project of remote access to public court records, not be the basis for keeping court files effectively buried in the basements of courthouses across the state.

Finally, please note that Mr. Berentson provides a schedule for the Public Access Afisory Committee Meeting Schedule. I hope that the press will be there and will represent us all in pushing for our right to genuine access this information (and not “practical obscurity,” which is the status under the current system).

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