Intellectual Property Law

Internet Disclosure of Civil Court Records: State Public Records Laws v. Privacy?

By IBLS Editor

Very simple; defrauders, including businesses, can easily, and at no cost, use Internet published civil court records to supply their ?data collection.?    In other words, some state public records laws have become accomplice of defrauders who use ?this mandated service? to obtain people?s financial and other private information for the defrauders? gloomy purpose.  State public records acts order disclosure of court records.  Yes, these laws have been in place for many years; but before, court records were kept in paper form.  Thus, access to court records implied personally going to the court, showing some type of identification, and knowing exactly what you were looking for.   Nowadays, court records are making transition from paper-based to electronic-based systems.  Hence, facilitating access to them, promoting illegal use and violating privacy rights in civil proceedings.  Are state legislators taking some action to upgrade their public records acts?  Probably not; they are too busy. And so are defrauders. 

This article informs on some states approach to the publication of civil court records on the Internet and discusses the soundness and flaws of this practice.

Ohio is one of the states whose public records laws require civil courts to disclose their records and they are doing it online.  This state?s law is used as example of the problematic of court records and their online publication in the United States.  

According to Ohio laws, public records are those kept by public entities (R.C. 149.43(A) (1)).  The same law defines ?record? as ?any document, device, or item, regardless of physical form or characteristic. . . created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office."   All public records must be made available for inspection to anyone, at any time during regular business hours (R.C. 149.43(B) (a)).  Thus, civil court records are public records because they serve to document the functions of the court.  The following probate case is an example of how Ohio Courts have interpreted their Public Record Act and have stood firm on their authority to publish those records on the Internet. 

In Re Estate of Engelhardt, 804 N.E.2d 1052 (Ohio 2004), the executrix of the estate filed a motion requesting the court to delete some records from the Internet.  The Executrix argued those documents, even though public documents, contained sensitive financial and private information.   Reasonably said, the estate argued that publishing those records on the Internet infringed the Constitutional Right to Privacy, and more importantly, created significant risk for theft and harm.   The court denied this motion stating that Ohio Public Record Act mandated that these records be available for inspection no matter its form.  ?This court must treat the public records it posts on the Internet in the same manner as it treats the public records maintained at the court. Therefore, the court has no discretion to remove from the Internet any public records that it continues to make available publicly at the court,? the court held. 

Moreover, this Ohio probate court supported its decision on a previous opinion from the Ohio Attorney General (?AG?) in which the AG recognized the authority of the state courts to publish public civil records on the Internet.    Aren?t AGs pro-crime prevention? Including preventing ID theft and internet fraud?   
  
When the executrix asked for the possibility deleting this record from the Internet as if the record were sealed, the court replied that it could only be done following statutory procedures regarding sealing records at the courthouse and this particular case did not meet the statutory requirements for such action.  Other state courts have expressly refused to grant petition for sealing civil court records.  For example, the Third, Sixth, Seventh, and Eleventh Circuit Courts refuse to seal civil court records because, they say, it violates Constitutional and the common law ?strong presumption? of a right to access civil records. 

Other states possess and have adopted the same Ohio position regarding Internet publication of civil court records.  They base their approach on constitutional principles, their own state constitution, state common law, and state statutory law.  At a Federal level, the issue is still unsettled.  Some U.S. Federal Courts have extended public access to civil proceedings and records based on Constitutional grounds.  Examples of these are the First, Second, Third, Fourth, Sixth, Seventh, and Eleventh Court of Appeals.

When balancing people?s right to the information v. privacy and security rights, at a state or Federal level, what should be the correct approach?  Given the massive audience of the Internet, should it be a unified Federal policy?
 
This is not an easy topic indeed. Many state officials argue that publication and fee access to public records serve two important social purposes among others.  First, it helps supervise and police the behavior of the courts and their employees to assure honesty, quality and respect for the legal system.   Second, it develops the rights conferred upon the citizens by the U.S. Constitution and the Freedom of Information Act (FOIA).   Conversely, those opposing Internet publication of civil records argue that they impinge upon Constitutional rights like the Fourteenth Amendment rights, affect the security of citizens and foment identity theft and fraud, which may potentially cause economic chaos. 

As we all know, no social policy serves a unilateral purpose.  On the contrary, balancing equitable rights is what serves public purposes.  Therefore, at some point in this evolution of the Internet, the U.S. Government or the state governments must balance the public access right to the information alongside with the people?s right to privacy.  U.S. citizens may certainly want quality and honesty in their legal system and enjoy the right to be informed.  But, they may also want to protect their privacy and sensitive information.  Or who wants to have one?s divorce proceedings or bank account information made public, and I mean ?worldwide? public?    

Full post as published by IBLS Internet Law Blog on January 15, 2008 (boomark / email).