Balancing the public’s right to know, the individual’s need for privacy, and the government’s need to carry out its mission is an ongoing challenge amid competing interests and changes in information technology. Minnesota’s courts have taken purposeful steps to address these issues, but data privacy and fair information practice protections in the courts remain more limited than those applicable to executive branch agencies.
Think back to the last hearing you had in Hennepin, Ramsey, Washington, or Anoka County. Suppose that during a break, your client leaned over to you at counsel table and whispered an inculpatorystatement. All four of those counties use something called Court Smart, a digital recording system with very sensitive microphones. Court Smart surely picked up your client’s statement.
Query: Can opposing counsel gain access to your client’s statement, voluntarily made in the courtroom and now audibly recorded in a governmental device and stored in a governmental building? And where would you go to find the answer to that query?
The answer to the first question, as you exhale shallowly, is “probably not;”1 and the source of the answer to the second question lies nestled unobtrusively in the 1,135 pages of the Rules of Courtbetween the Rules for Mental Commitment and Rules on Paper Size. It is a laconic and seldom-cited set of prescriptions determining access to the millions of documents on court computers and in courthouse filing cabinets with the mouthful-name, Rules of Public Access to Records of the Judicial Branch (“RPARJB”).
Although that hypothetical, imprudent client may have dodged that particular bullet, your other clients might have more than a passing interest, in this era of Passportgate, in whether and to what extent anyone with an internet connection in his or her home can, from afar, rifle through judicial records about them. The answer to that (declaratively framed) question is “You betcha!”
Matters of Record
Almost anything submitted to or generated by the court is accessible by anyone for any reason.2 In addition to pleadings, memoranda and orders, court records include DNA evidence admitted at trial; tax returns; corporate proprietary information; ad hominem attacks in affidavits; salary data; whether a child in a custody case has ADHD or wets his bed; and deposition testimony read into the record describing individuals who were not parties to the case and who, consequently, never had the opportunity to rebut what the deponent said. The RPARJB governs access to these and other court records.
You may skip the next two paragraphs if you have no interest in the historical context for these rules, but Watergate was the midwife to their promulgation. In 1974, in response to the revelations of government intrusion during the Nixon Administration, Congress enacted the Freedom of Information Act (“FOIA”),3 and the Minnesota Legislature enacted the Minnesota Government Data Practices Act (“MGDPA”).4 The linchpin of the state statute was, and remains, access—regulating to whom government information is accessible and under what conditions.5
The MGDPA applied to state government executive branch agencies, to counties, to municipalities, to school districts, and to the University of Minnesota. Because of the doctrine of Separation of Powers, it was unclear whether the MGDPA also applied to data maintained by the judicial branch. In 1985, the Legislature resolved that doubt, at the suggestion of the press, exempting the judiciary from any coverage by the MGDPA, subject to the adoption of rules governing access to judiciary records.6
In response to this amendment, then-Justice John Simonett convened a group of government officials, judges, and attorneys representing newspapers and the public to fashion a set of rules for access to records of the judicial branch. The result of that group’s deliberations was the original version of the Rules of Public Access to the Records of the Judicial Branch, promulgated in 1988. Because of the composition of the group, the rules focused on access but omitted any reference to the privacy rights of individual data subjects.
In 2004, Justice Paul Anderson convened a new committee to update the RPARJB, owing to the computerization of records and access to them at courthouse terminals. In 2005, the Supreme Court promulgated the updated RPARJB, based on the recommendations of the committee, the majority of whose members were government officials, judges, or attorneys for the media.7
The revised RPARJB added one fair information practice protection: There is now a process for correcting errors in judicial records8 (including an appeal to the state court administrator if your demand is denied);9 and there are some records to which access is now limited in order to protect individual privacy: social security numbers; street addresses, home telephone numbers; financial account numbers; the identities of jurors and victims of crimes, books you check out from the State Law Library, and your passport records (State Department contractors, please take note).10
Additionally, judicial drafts, law clerk work products, trade secrets, sealed bids, race data, and copyrighted material are inaccessible to the public.11
Accessing the Records
In a strange twist on privacy protection, some records of the judiciary may not be accessed remotely but require a physical visit to a courthouse in order to gain access.
Those privacy and fair information practice protections are not as broad as afforded to subjects of data maintained by executive branch agencies, e.g., the right of an individual to find out if there are records maintained on him or her12 and the civil equivalent to a Miranda warning when information is collected.13 Moreover, you can’t sue administrators who negligently disseminate records that are supposed to be private because they, unlike their executive branch counterparts, are immune from liability for unintentional torts.14
If you are more concerned about accessing someone else’s data rather than protecting yours, the source of the data will inform how you unlock the entrance: You can access and download court records from your home computer if the court generated them15 or if the records are appellate briefs;16 otherwise, you can access court records generated by attorneys and litigants, including exhibits admitted into evidence,17 in the courthouse during business hours.18 The system is designed so that you can access any court records from any terminal in any courthouse in the state.19
It is clear from the deliberations of the Supreme Court’s advisory committee that the judiciary continues to struggle with the changes wrought by technology. For example, judges and other court personnel formed a solid bloc voting against public access to the tapes generated by Court Smart. Those tapes may very well be the best record of what has happened in a courtroom.
As always, technology evolves a good deal more rapidly than the law, so scanners, photo-phones, miniaturized cameras, high performance wireless transmitters, and who-knows-what’s-next will continue to maintain the tension among the public’s right to know, the individual’s right to privacy, and the government’s need to carry out its mission.
1 The Supreme Court of Minnesota issued an order at the end of 2007, effective March 1, 2008, amending the Rules of Public Access to the Records of the Judicial Branch, so that the trial judge has the authority to decide what gets disseminated from auditory recordings. Rules of Access to the Records of the Judicial Branch (“RPARJB”), Rule 4, subd. 3. Since the whispered comment was not for the record, and because the client’s statement to his lawyer ought to be protected by the attorney-client privilege, you have a very good chance that the judge will not make it available to opposing counsel.
2 RPARJB, Rule 4, subd. 1.
3 5 U.S.C. §552a.
4 Minn. Stat. §13.01, et seq. In 1974, this statute was denominated the Data Privacy Act, but in 1980, when the Legislature heavily amended the law, the name was changed to the Minnesota Government Data Practices Act in recognition that it encompassed Fair Information Practices notions, balancing open records and individual privacy.
5 Gemberling and Weissman, “Data Privacy: Everything You Wanted to Know About the Minnesota Government Data Practices Act – From “A” to “Z,” 8 William Mitchell Law. Rev. 573, 582 (1092).
6 Minn. Stat. §13.90.
7 Justice Anderson reconvened the committee in 2007, primarily to address the issue of Court Smart digital recordings.
8 Minn. Stat. §13.90.
9 RPARJB, Rule 9.
10 RPARJB, Rule 8, subd. 2(b); Rule 5, subd. 10, 11.
11 RPARJB, Rule 4, subd. 2(c) and (3); Rule 5, subd. 6-8, 12.
12 Minn. Stat. §13.03, 04(3).
13 Called the “Tennessen Warning” after the one of the law’s original sponsors, State Sen. Robert Tennessen. Minn. Stat. §13.04, subd. 2.
14 RPARJB, Rule 11.
15 RPARJB, Rule 8, subd. 2(a).
16 RPARJB, Rule 8, subd. 2(e)(2).
17 RPARJB, Rule 8, subd. 5.
18 RPARJB, Rule 8, subd. 1.
19 2005 Advisory Comment to Rule 8, RPARJB.
GARY A. WEISSMAN was an attorney for 30 years in Minneapolis, whose practice included litigation under FOIA and the Minnesota Government Data Practices Act. By the time this is published he will have retired and will be on his way to his new domicile in Jackson Hole, WY.
DONALD A. GEMBERLING retired in 2004 after serving for almost 30 years as director of the Information Policy Analysis Division of the Minnesota Department of Administration. He has recently written a series of articles on government accountability published by the St. Paul Pioneer Press.