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Digital court records access: social justice and judicial balancing

December 1, 2020

With the expanding use of online court records searches, either provided by the courts themselves or through private third parties that "scrape" court case management systems, many states have been left to grapple with the question of what if anything to put online. Docket information alone? Documents? Should there be tiers of access where the public has some information but attorneys and parties to the case have additional, expanded information?

This issue came up most recently in Maine which has in the last several years moved towards an electronic case access system and was the focus of a January 2020 article in the Maine Law Review entitled Digital Court Records Access: Social Justice and Judicial Balancing. In it, the author attempts to put Maine's debate on the subject into a broader context of competing interests and whether and to what extent there is a constitutional right to access these documents in general or in electronic form in particular. The article notes the Maine Judicial Branch Transparency and Privacy Task Force ultimately concluded in its final report to phase in access to the newly created online document access system in an attempt to balance public access and privacy concerns.

Both the Task Force and the article reference several National Center products, in particular the Best Practices for Court Privacy Policy Formulation (2017) and Automated Redaction Proof of Concept Report (2018). Both focus on recent innovations in the areas of access and privacy in terms of court records at both the policy and day-to-day practical levels. The Conference of State Court Administrators (COSCA) also produced a white paper on the subject in 2019 entitled Court Data: Open, With Care that makes the distinction between electronic access to court case records versus court case data. COSCA came out in favor of open access to public court case data in an accessible, machine-readable format within constraints imposed by issues of data standards, data integrity, funding, and privacy.

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