After months of deliberation, Minnesota courts have opted to make more of their records electronically accessible through the internet. Though some restrictions remain in place—especially regarding juveniles or pending criminal matters—the result is a much more publicly open system.
When the Minnesota Supreme Court convened an advisory committee in 2003 to study whether and to what extent the state’s court records should be available on the internet, the prospect of records being widely available “with the click of a computer mouse” provoked an intense reaction.
The panel, composed of judges, court administrators, attorneys, and others, ultimately recommended a “go-slow approach,” putting only the most basic information online—court dockets, calendars, judgments, orders, and opinions. The reason: fear among some panel members that court data could be used to steal identities, harass crime victims, and smear people accused but not convicted of crimes. For the same reasons, the committee recommended “preconviction” criminal records not be searchable by name. The records would be public at the courthouse, but shrouded in “practical obscurity”—meaning few people would actually travel to a courthouse to pry into (or amass dossiers from) records about individuals.
Still, one of the committee’s members predicted the information tide would not remain dammed up much longer. “I’m convinced that the zone of remotely accessible records will expand until someday… essentially everything that I can get at the courthouse that’s public will be remotely accessible,” said media attorney Mark Anfinson.
The Supreme Court adopted the go-slow recommendation, authorizing only the basics to be accessible on the judicial branch’s Minnesota Court Information System (MNCIS). By contrast, the federal judiciary’s online system, Public Access to Court Electronic Records (PACER), was “nearly universal” by 2007, allowing registered users to view and download civil and criminal court documents and opinions for a per-page fee. By fiscal year 2015, PACER had 2 million registered users. And by 2014, 11 state court systems had established “well-developed” remote access to various types of documents. Minnesota continued to make most court records available only at the courthouse.
The openness debate
It nearly goes without saying that public access to the courts is historic, important, and has numerous benefits. Among the obvious benefits courts have noted: informed oversight of the judicial process and the “therapeutic value” of tracking high-profile cases.
To proponents of openness, the internet offers a way to super-charge long-held principles of openness. They see improved access through technology as “a straightforward good”—an end in itself. But for every open-records advocate, there is a lawyer, judge, scholar, or activist chafing over the privacy implications of unbridled remote access to court records.
It was inevitable these tensions would resurface once Minnesota Chief Justice Lorie S. Gildea reconvened and appointed new members to the public-access rules committee last year.
Though informed by principle, the committee reboot had more prosaic origins. Over the past decade, the Minnesota Judicial Branch, like other state court systems, has been taking steps to transition from a traditional paper to an electronic information environment. This “eCourtMN” initiative required the appointment of several advisory committees, including the public-access committee, to consider whether court rules needed to be amended to accommodate electronic filing and service in the district courts.
Because of the separation of powers, the judicial branch is not covered by the Minnesota Government Data Practices Act; rather, the judicial branch enacts its own rules for access. For the public-access committee, the new electronic environment posed a question: Once documents were routinely going in digitally to the courts, would it be a two-way street? Would information be allowed to flow back out?
The new panel met for 19 hours over three months to mull this. Much of its work was uncontroversial. There was little or no objection, for example, to making requests for administrative warrants nonpublic, lest the targets of such filings be tipped off before service; or to keeping secret responses to a criminal expungement petition; or to protecting certain domestic abuse and harassment records; or to obligating attorneys to redact sensitive private information from documents before filing or else face sanctions.
By its second meeting, though, the panel began to bog down over its biggest issue: Rule 8, the centerpiece of the go-slow approach.
Advocates of expanded access argued the heavily restricted approach had become outdated. Hennepin County Chief Judge Peter A. Cahill, a member of the committee, was among those arguing strongly that there should be remote access to all documents already available at the courthouse, in line with a proposal earlier in 2014 by the judicial branch’s eCourt steering committee. Attorneys from rural areas or with active late-night criminal practices supported this position. Media attorneys pointed out that in an era of shrunken news staffs, remote access was necessary to help journalists and citizen bloggers inform the public.
Others pushed back. Family-law attorneys argued that documents filed in their cases contained sensitive and potentially embarrassing information about litigants and their children that should not be easily accessible by neighbors, acquaintances, or imagined nosy adolescents—what some committee members summarized as “pajama browsing.” They suggested delaying remote access by two or three days to give parties a chance to object to remote access to their documents. Some members feared landlords and employers would scoop up data from a wide-open remote MNCIS and unfairly discriminate against applicants with histories in the courts.
As in 2004, the committee also struggled over remote access to criminal cases in which defendants had not yet (or not ever) been convicted, with some arguing that permitting remote public access to documents in those cases would lead to “scraping” and resale of the records by data-mining businesses, and in turn to the creation of dossiers on the former defendants.
Another issue was whether remote access, once widened, should come at a price. Proponents argued that charges would deter the merely curious; opponents responded that excessive charges would be unfair and arbitrary. Court administrators on the committee had pragmatic concerns over whether MNCIS had the technical capability to provide the various types of access—or limits—that members were suggesting.
The panel weighed various approaches to break the logjam, from no remote access at all to broad access. Members considered whether to allow pending criminal cases and family cases to be searched by name, only by case number, or not at all. Some members argued fiercely that allowing remote access for these types of cases, even with limitations such as requiring searchers to have a case number, would erode privacy because searchers would find ways to obtain case numbers.
After about 17 hours of debate, the committee reached a consensus. There was little sentiment for maintaining the existing Rule 8, which kept nearly all documents from remote view. Neither did the other extreme prevail—a maximum level of remote access, which would put heavy demand on litigants and court staff to redact or wall off certain types of documents or information within documents. The compromise was a system of “tiered access,” in which levels of remote access would vary by the type of case:
In felony-level juvenile delinquency proceedings involving a child at least 16 years old (known as “D-16” cases) and child-protection cases (“CHIPS” for short), there would be no remote access, but data would still be accessible at courthouses.
In civil commitment cases, there would be remote access only to the register of actions, calendars, and search indexes. Commitment cases involving minors would be nonpublic altogether.
In family and paternity cases, remote access would be provided to the register of actions, calendars, and search indexes, plus court-filed documents.
In civil and criminal cases, searchers could remotely access the register of actions, calendars, and search indexes; court-filed documents; and party-filed documents as well, except that pending criminal cases could be searched only by case number, not name.
The committee took no position on whether (or how much) remote users should be charged, leaving that question to the Supreme Court.
One member authored a minority report, which no others joined, arguing that the final report did not guard against the risks of data mining and that people’s private and business information would be exposed to “anyone with an internet connection, whether it be identity thieves from abroad, potential future employers, business competitors, burglars, stalkers or retailers trying to sell anything from insurance policies to home repair.”
One provision that wound up in the committee’s final report, added late in the process, would prove to be controversial. The committee recommended all records of juvenile-protection proceedings “in which the child is a party” be made inaccessible—not just remotely inaccessible, but completely inaccessible—to the public. That would have included the reports of county social workers and guardians ad litem, important documents in any child-protection case. The change was proposed by both the eCourt steering committee and the Supreme Court’s advisory committee on the rules of juvenile-protection procedure. Proponents suggested the limitation would help children, but the proposed change would have reversed reforms made to the child-protection system a decade earlier with much fanfare. The proposal also coincided with a year-long series of reports by the Minneapolis-based Star Tribune about shoddy child-protection investigations—reports enabled in part by the very documents that would be made secret. Added about six weeks before the committee’s year-end deadline, the proposed change provoked no reaction at that time from members of the panel.
The Supreme Court approves, except for CHIPS change
The committee’s recommendations provoked sharp reaction, especially its proposal to make juvenile-protection documents inaccessible even at the courthouse. In public comments and testimony to the Minnesota Supreme Court, journalists and child advocates, including Kathleen Blatz, a former chief justice, urged the court to keep records of child-protection proceedings open. They noted that the court, in a nationally recognized initiative, had opened up such records between 1998 and 2001 precisely to improve the performance and accountability of state and county child-protection agencies.
In April, the Supreme Court adopted nearly all of the access committee’s recommendations, finding that they achieved the right balance between openness and privacy. The remote-access provisions would apply to documents filed on or after July 1, 2015. The court deferred the question of fees. But the court balked at the proposal to wall off child-protection records. In a separate order on the juvenile-protection committee’s report, the court elected to keep social worker and guardian ad litem reports in CHIPS case records open, which presumably moots the access committee’s related rule change. The court ordered the committee to monitor the rules and amendments and report back by April 1, 2016.
The upshot: As early as July 1, 2016, or else by January 1, 2017, all civil case documents and post-conviction criminal case documents from Minnesota courts will be remotely accessible. It is as hard to overstate the potential impact of this expanded access as it is to predict all the consequences. There is no avoiding that information in court files will be available for good or ill. Attorneys, journalists, and whistleblowers will add value through the ability to retrieve documents late at night, or on weekends, or in greater Minnesota where a courthouse is far away. Yet the dreaded “pajama snooper”—the malicious ex-spouse, the nosy neighbor, the bullying adolescent—will likely be out there poking through the data as well. The questions debated in 2014 were not much different than those of 2004: Will the public benefits afforded by the former outweigh the potential annoyances and embarrassment caused by the latter? Are these fears reason to block the benefits of open records? Can Minnesota’s judicial branch keep these competing interests, openness and privacy, in balance as it moves into the electronic future?
Rick Linsk is an attorney at Lockridge Grindal Nauen, P.L.L.P. in Minneapolis. A former newspaper journalist, he was a judicial law clerk for the Minnesota Supreme Court, and has been a member since 2014 of the court’s Advisory Committee on Rules of Public Access to Records of the Judicial Branch.