““Privacy in Court Records Privacy in Court Records and County Records”and County Records”

Professor Peter P. SwireProfessor Peter P. Swire

The Ohio State UniversityThe Ohio State University

Center for American ProgressCenter for American Progress

NACo Legislative ConferenceNACo Legislative Conference

March 3, 2008 March 3, 2008

OverviewOverview

My backgroundMy background Legal background on court openness and Legal background on court openness and

privacyprivacy Case study on federal bankruptcy and privacyCase study on federal bankruptcy and privacy Some other relevant federal lawsSome other relevant federal laws Privacy Impact Assessments & computer Privacy Impact Assessments & computer

securitysecurity ConclusionConclusion

I. My BackgroundI. My Background

Currently:Currently: Professor of Law, Ohio State UniversityProfessor of Law, Ohio State University Senior Fellow, Center for American ProgressSenior Fellow, Center for American Progress

• I live in the DC areaI live in the DC area ““Privacy Year in Review” distributed to all Privacy Year in Review” distributed to all

IAPP membersIAPP members ““Information Privacy” – official manual for Information Privacy” – official manual for

Certified Information Privacy ProfessionalCertified Information Privacy Professional www.peterswire.net

Chief Counselor for PrivacyChief Counselor for Privacy

Office of Management & Budget, 1999 to Office of Management & Budget, 1999 to early 2001early 2001 HIPAA medical privacy ruleHIPAA medical privacy rule GLB financial privacy law & ruleGLB financial privacy law & rule Chair, White House Working Group on how to Chair, White House Working Group on how to

update wiretap & surveillance lawsupdate wiretap & surveillance laws Safe Harbor with European UnionSafe Harbor with European Union Government records, including study on Government records, including study on

privacy & bankruptcy recordsprivacy & bankruptcy records

I. Background on Public I. Background on Public RecordsRecords

History of both legal openness and History of both legal openness and significant, practical obscuritysignificant, practical obscurity

History of legal opennessHistory of legal openness Common law right “to inspect and copy public Common law right “to inspect and copy public

records and documents, including judicial records and documents, including judicial records and documents”records and documents”

Nixon v. Warner Communications, Inc., 435 Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978)U.S. 589 (1978)

Legal OpennessLegal Openness

6th Cir. “Trial court must set forth substantial 6th Cir. “Trial court must set forth substantial reasons for denying” access to its records, U.S. reasons for denying” access to its records, U.S. v. Beckham, 789 F.2d 401(1986)v. Beckham, 789 F.2d 401(1986)

5th Cir. “While other circuits have held there is a 5th Cir. “While other circuits have held there is a strong presumption in favor of the public’s strong presumption in favor of the public’s common law right of access to judicial records, common law right of access to judicial records, we have refused to assign a particular weight to we have refused to assign a particular weight to the right.” SEC v. Van Waeyenberghe, 990 F. 2d the right.” SEC v. Van Waeyenberghe, 990 F. 2d 845 (1993)845 (1993)

Legal Openness & DiscoveryLegal Openness & Discovery

Presumption of access stronger for filed than Presumption of access stronger for filed than non-filed documentsnon-filed documents

Less clear on documents filed in connection with Less clear on documents filed in connection with discoverydiscovery

Some courts find no right to access to discovery Some courts find no right to access to discovery documents submitted in connection with documents submitted in connection with discovery motions, Anderson v. Cryovac, Inc. discovery motions, Anderson v. Cryovac, Inc. 805 F.2d 1 (1st Cir. 1986)805 F.2d 1 (1st Cir. 1986)

Legal Openness & 1st Am.Legal Openness & 1st Am.

1st Amendment right to attend criminal trials, to 1st Amendment right to attend criminal trials, to guarantee freedoms such as speech & press, guarantee freedoms such as speech & press, Richmond Newspapers Inc. v. Virginia, 448 U.S. Richmond Newspapers Inc. v. Virginia, 448 U.S. 555 (1980)555 (1980)

No Supreme Court ruling on 1st Amendment No Supreme Court ruling on 1st Amendment right of access to civil trials or court documentsright of access to civil trials or court documents

McVeigh case & denial of press requests for McVeigh case & denial of press requests for sealed documents, 119 F.3d 806 (1997)sealed documents, 119 F.3d 806 (1997)

Privacy Limits on AccessPrivacy Limits on Access

Even where presumption of openness, Even where presumption of openness, courts may restrict access:courts may restrict access: ““Every court has supervisory power over its Every court has supervisory power over its

own records and files, and access has been own records and files, and access has been denied where court files might have become a denied where court files might have become a vehicle for improper purposes” Nixon v. vehicle for improper purposes” Nixon v. Warner Communications.Warner Communications.

Practical ObscurityPractical Obscurity

US DOJ v. Reporters Committee for Freedom of the US DOJ v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989)Press, 489 U.S. 749 (1989)

Recognized privacy interest in rap sheets & other Recognized privacy interest in rap sheets & other information publicly available but “practically information publicly available but “practically obscure”obscure”

Court noted “the vast difference between the public Court noted “the vast difference between the public records that might be found after a diligent search of records that might be found after a diligent search of courthouse files, county archives, and local police courthouse files, county archives, and local police stations throughout the country and a computerized stations throughout the country and a computerized summary located in a single clearinghouse of summary located in a single clearinghouse of information”information”

Accountability & PrivacyAccountability & Privacy

In Reporters Committee, in FOIA setting, the In Reporters Committee, in FOIA setting, the Court defined the public interest as “shedding Court defined the public interest as “shedding light on the conduct of any Government agency light on the conduct of any Government agency or official”, not acquiring information about a or official”, not acquiring information about a particular private citizenparticular private citizen

““The fact that an event is not wholly private does The fact that an event is not wholly private does not mean that an individual has no interest in not mean that an individual has no interest in limiting disclosure or dissemination of the limiting disclosure or dissemination of the information”information”

II. Federal Bankruptcy StudyII. Federal Bankruptcy Study

Released January 19, 2001Released January 19, 2001 Bankruptcy as a federal systemBankruptcy as a federal system Then pending proposal to put all bankruptcy Then pending proposal to put all bankruptcy

records on-line, with Internet accessrecords on-line, with Internet access Sensitive dataSensitive data

SSNsSSNs Bank account numbers and balancesBank account numbers and balances Credit card numbersCredit card numbers These are targets for thievesThese are targets for thieves

Goals to AchieveGoals to Achieve

Fair and efficient administration of bankruptcy Fair and efficient administration of bankruptcy systemsystem

Needs of the parties in interestNeeds of the parties in interest Accountability to the publicAccountability to the public Balance with privacy interests, especially for Balance with privacy interests, especially for

sensitive informationsensitive information Fit with GLB and other relevant lawsFit with GLB and other relevant laws

Recommendation 1Recommendation 1

Public access to core informationPublic access to core information Core information includes fact an Core information includes fact an

individual has filed, type of bankruptcy individual has filed, type of bankruptcy proceeding, identities of parties in interestproceeding, identities of parties in interest

Recommendation 2Recommendation 2

No general public access to sensitive No general public access to sensitive informationinformation

SSNs, credit card numbers, loan accounts, SSNs, credit card numbers, loan accounts, dates of birth, bank account numbersdates of birth, bank account numbers

Schedules should be removed from public Schedules should be removed from public record that show detailed profiles of personal record that show detailed profiles of personal spending habits and debtors’ medical spending habits and debtors’ medical informationinformation

Care for non-filing spouses and others’ dataCare for non-filing spouses and others’ data

Recommendation 3Recommendation 3 Parties in interest should have access to Parties in interest should have access to

much non-public informationmuch non-public information This is important for exercising their rights This is important for exercising their rights

and responsibilitiesand responsibilities However, general re-use and re-disclosure However, general re-use and re-disclosure

limits for purposes unrelated to administering limits for purposes unrelated to administering bankruptcy casesbankruptcy cases

E.g., don’t create database for resale E.g., don’t create database for resale gathered from parties in interestgathered from parties in interest

Recommendation 4Recommendation 4

Incorporate Fair Information PrinciplesIncorporate Fair Information Principles NoticeNotice Consent for unrelated usesConsent for unrelated uses

• Data available, though, for certain government Data available, though, for certain government usesuses

Access by the debtors Access by the debtors Data security and integrityData security and integrity AccountabilityAccountability

III. Other Relevant LawIII. Other Relevant Law

Protective ordersProtective orders Longstanding judicial practice, upon proper Longstanding judicial practice, upon proper

motionmotion Trade secret casesTrade secret cases Many settlement agreementsMany settlement agreements Should we move from retail protective orders Should we move from retail protective orders

to more wholesale approach for categories of to more wholesale approach for categories of cases?cases?

Other lawOther law

HIPAA medical privacy rule as a useful modelHIPAA medical privacy rule as a useful model Sec. 512(d) -- judicial & administrative Sec. 512(d) -- judicial & administrative

proceedingsproceedings Covered entities can only disclose medical Covered entities can only disclose medical

records as permittedrecords as permitted 1st option -- notice to the individual and 1st option -- notice to the individual and

opportunity to objectopportunity to object

Other law -- HIPAAOther law -- HIPAA

2d option -- “qualified protective order”2d option -- “qualified protective order” Covered entity must seek agreement that the Covered entity must seek agreement that the

other party will keep data confidentialother party will keep data confidential Records used only for the proceedingRecords used only for the proceeding Must be returned or destroyed after thatMust be returned or destroyed after that

HIPAA does not apply directly to courtsHIPAA does not apply directly to courts But, strong national policy that privacy protection But, strong national policy that privacy protection

should be built into judicial and administrative should be built into judicial and administrative proceedingsproceedings

IV. Building Privacy & SecurityIV. Building Privacy & Security

Privacy Impact Assessments as a “best practice” for Privacy Impact Assessments as a “best practice” for federal agencies, 2000federal agencies, 2000

E-Gov Act of 2002 requires PIAs for new computer E-Gov Act of 2002 requires PIAs for new computer systemssystems

Dept. Homeland Security as one leader, with many Dept. Homeland Security as one leader, with many posted on its web siteposted on its web site

The Bankruptcy study was basically thisThe Bankruptcy study was basically this Special attention to SSNs and other breeders of Special attention to SSNs and other breeders of

identity theftidentity theft You might consider this for your new systemsYou might consider this for your new systems

Computer SecurityComputer Security

FISMA mandates self-assessment for security, and FISMA mandates self-assessment for security, and risk-based security measures, for federal systemsrisk-based security measures, for federal systems Outsider attacks much more common for Internet Outsider attacks much more common for Internet

than previouslythan previously Insider attacks, though, are likely bigger risk in Insider attacks, though, are likely bigger risk in

many applicationsmany applications HIPAA, GLB, Sarbanes-Oxley & general expectation HIPAA, GLB, Sarbanes-Oxley & general expectation

for this as expected practicefor this as expected practice You should likely be doing security & privacy You should likely be doing security & privacy

analyses as part of new and upgraded systemsanalyses as part of new and upgraded systems

V. Concluding ThoughtsV. Concluding Thoughts Some thoughts for court records:Some thoughts for court records:

Should the price of filing for bankruptcy be Should the price of filing for bankruptcy be disclosure of your current bank account?disclosure of your current bank account?

Should the price of filing for disability be Should the price of filing for disability be Internet access to your lifetime medical Internet access to your lifetime medical records?records?

What rules are appropriate for information What rules are appropriate for information about minors and non-parties?about minors and non-parties?

In short, reasons for privacy as well as In short, reasons for privacy as well as openness/convenienceopenness/convenience

How Decide on Privacy v.How Decide on Privacy v. Open Access? Open Access?

FOIA and open records are crucial valuesFOIA and open records are crucial values That said, here is a simple test about privacy:That said, here is a simple test about privacy:

How would you want the records of your own How would you want the records of your own family treated?family treated?

Do you have the privacy and security practices Do you have the privacy and security practices in place that you would want for your spouse in place that you would want for your spouse and children?and children?

If you meet that test, you can be proud of your If you meet that test, you can be proud of your countycounty

Thank you.Thank you.

Contact InformationContact Information

Professor Peter SwireProfessor Peter Swire www.peterswire.net www.americanprogress.org www.thinkprogress.org Moritzlaw.osu.eduMoritzlaw.osu.edu