Endnotes, Resources and Cases: Future Trends in Public Access

* The author wishes to thank Michael Johnson, senior legal counsel, Minnesota State Court Administrator’s Office, and the author’s law clerk Hugh Brown, University of Minnesota Law School, J.D., 2010, for their assistance in the research and editing of this article.

1 See U.S. Dept. of Justice v. Reporters Committee for the Freedom of the Press (1989), at 749 (holding that a citizen’s interest in maintaining secrecy of his arrest and conviction records justified maintaining the records’ "practical obscurity").

2 Witnesses testifying before the Minnesota Supreme Court Advisory Committee on the Rules of Public Access to Records of the Judicial Branch on February 12, 2004, including Tom Johnson, Council on Crime and Justice; Pastor Albert Gallmon, Jr., Fellowship Missionary Baptist Church, Minneapolis; Archbishop Harry J. Flynn, Archdiocese of St. Paul and Minneapolis; Roger Banks, State Council on Black Minnesotans; Kizzy Johnson, Communities United Against Police Brutality; and Bishop Craig Johnson, Evangelical Lutheran Church in America.

3 For example, the clerk of court in Butler County, Ohio, was ordered to turn off Internet access to court records until domestic-relations cases could be removed due to concerns over disclosure of Social Security numbers, bank-account numbers, and other personal information (Morse, 2003). The clerk of court in Loudon County, Virginia, unplugged his subscription-based remote-access service after concerns over disclosure of personal information caused the county board to formally request the action and the creation of a task force to study the issue ("Clemens Unplugs Online Remote Access System," 2003). Even the federal judicial conference had to back away from its initial Internet access for criminal records (Associated Press, 2001; citing access by inmates who harassed or beat other inmates, and access to presentence investigation reports, which contain sensitive material).

4 As evidence of how quickly the law is developing, during the editing of this article the Florida Bar Association proposed a new Rule 2.451 that gives judges the authority to ban and confiscate devices such as digital and video cameras, audio recorders, and cell phones but provides an "exception" for "professional journalists" as defined in Florida’s journalist’s shield law. Proposed rules dealing with the use of electronic devices in court are posted at www.floridabar.org/divcom/jn/jnnews01.nsf/8c9f13012b96736985256aa900624829/22ebc5031a9221dd85257801004aa25e!OpenDocument. In contrast, a rules committee of the Massachusetts Supreme Judicial Court proposed amendments to SJC Rule 1:19 that are designed, in part, to address the more-varied use of electronic technology in courtrooms, both by traditional media and new media. NOTICE, Proposed Amendment to Rule 1:19 of the Rules of the Supreme Judicial Court (posted at www.mass.gov/courts/sjc/comment-sjc-r119-012811.html ).

5 Wardlaw v. State, 2009 (holding that when a juror researched a psychological disorder from which the defendant allegedly suffered, the district court’s reminder to the jury not to conduct research was an insufficient response, and a mistrial should have been granted).

6 See, e.g., People v. McNeely, 2007 (holding that where the foreman of the jury had discussed deliberations on his blog, the defendant was deprived of a fair trial); State v. Scott, 2009 (holding that when a juror announced that she had done Internet research on the case and told the jury what her verdict would be, the district court erred when it denied a mistrial); United States v. Ebron, 2010, at *6-8 (holding that a juror was properly excluded for conducting Internet research during a trial); In re Methyl Tertiary Butyl Ether Products Liability Litigation, 2010, at *7 (holding that it was juror misconduct to conduct independent legal research during a trial).

7 The rules are based upon commonsense principles and include directions to be responsible, upfront, civil, and respectful; to be quick to correct any errors; to keep the information relevant so it adds value; to follow copyright and fair-use laws; to protect proprietary and client information; to refrain from endorsements of political candidates; to comply with the Montana rules governing lawyer advertising; to avoid any violation of anti-trust laws; and to abide by the social network’s rules (see "New Social Networking," 2011).

8 See Order Promulgating Amendments to the Rules of Criminal Procedure Relating to Use of a Statewide Uniform Citation, ADM10-8049 (Jan. 13, 2011). By January 1, 2012, Minnesota will have one citation form used throughout the state. It will replace 128 different citation forms used by over 450 different law-enforcement agencies.

9 See Minn. R. Pub. Access to Record of the Judicial Branch 4, subd. 3.

10 Minn. R. Gen. Prac. 11.

11 Discussion with Michael Johnson, senior legal counsel, Minnesota State Court Administrator’s Office, Legal Counsel Division, January 20, 2011.

12 Although court rules expressly direct parties in criminal cases, for example, to file only a list of discoverable items and not the items themselves, Minn. R. Crim. P. 9.03, subd. 9, many courts routinely accepted all sorts of discovery items, including photographs in electronic format, surveillance videos, and bulky items. Courts have had to rethink this approach as they have discovered that they also inherited responsibility for public access to these items, which can be difficult to reproduce and preserve (for chain-of-custody purposes), and to filter any appropriate privacy interests. Discussion with Michael Johnson, January 20, 2011.

13 Minnesota’s Rules of Public Access (8, subd. 6) permit the imposition of a reasonable fee, on top of any copy production costs, for any bulk data that has commercial value. In practice this commercial fee is waived for bulk-data disclosures for education or for media analysis as long as the recipient agrees to limit the use of bulk data. Discussion with Michael Johnson, January 1, 2011.

14 National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency, 2011 (holding that the federal government must include metadata in Freedom of Information Act productions and that certain key metadata fields are an integral part of public records). Resources

Associated Press (2001). "Federal Judge, Agencies Block Online Access to Public Records," October 12.

Atkins, K. (2010). "New Genetic Information Rules Advise Employers, but Questions Remain, In House Counsel," Minnesota Lawyer, December, p. S-8.

Beaumont, C. (2010). "Twitter Users Send 50 Million Tweets per Day," The Telegraph (U.K.), February 23. www.telegraph.co.uk/technology/twitter/7297541/Twitter-users-send-50-million-tweets-per-day.html

Cafferty, J. (2011). "Social Media and Egypt Uprising?" Cafferty File Blog, CNN Politicshttp://caffertyfile.blogs.cnn.com/2011/01/31/social-media-egypt-uprising/  (last visited February 1, 2011)

Campsie, A. (2011). "Legal First at Sheridan Hearing," Herald Scotland, January 27. www.heraldscotland.com/news/crime-courts/legal-first-at-sheridan-hearing-1.1081868

Carter, S. L. (1996). "The Insufficiency of Honesty," Atlantic Monthly, February, pp. 74-76.

"Clemens Unplugs Online Remote Access System" (2003). Leesburg2Day, July 28.

Conference of Court Public Information Officers (2010). New Media and the Courts: The Current Status and a Look at the Future. Williamsburg, VA: CCPIO, National Center for State Courts, and the E. W. Scripps School of Journalism.

Grow, B. (2011). "U.S. Juror Could Face Charges for Online Research," Reuters, January 19. www.reuters.com/article/2011/01/19/us-internet-juror-idUSTRE70I5KI20110119

Johnson, B. (2010). "Privacy No Longer a Social Norm, Says Facebook Founder," Guardian, January 11. www.guardian.co.uk/technology/2010/jan/11/facebook-privacy

Recommendations of Minnesota Supreme Court Advisory Committee on Rules of Public Access to Records of the Judicial Branch (2004). www.lawlibrary.state.mn.us/access/accessreport.htm

MacLoed, B. (2011). "A Case for Moral Code in Social Media," London Free Press, January 26. www.lfpress.com/comment/2011/01/26/17038381.html

Mauro, T. (2010). "Are Judges Using Facebook?" National Law Journal, August 31.

McManus, D. (2011). "Op-Ed: Did Tweeting Topple Tunisia?" Los Angeles Times, January 23. http://articles.latimes.com/2011/jan/23/opinion/la-oe-mcmanus-column-tunisia-twitter-20110123

Morse, J. (2003). "Separating Court Records for Net Access May Be Costly," Cincinnati Enquirer, July 24.

National Center for State Courts (n.d.). "Social Media and the Courts: State Links."
www.ncsc.org/topics/ media-relations/social-media-and-the-courts/state-links.aspx    

"New Social Networking Policy for Bar Entities" (2011). 36 Montana Lawyer 14.

Reed, J. W. (2009). "The Optimism of Uncertainty," The Bar Examiner, August.

Shirky, C. (2011). "The Political Power of Social Media," 90 Foreign Affairs 28.

"Social Network Users Are Satisfied with Privacy Options" (2011). EMarketer, January 6. www.emarketer.com/Article.aspx?R=1008199

Social Networking Law Blog (2011). "Judge Faces Reprimand After He ‘Friends’ Attorney on Facebook and Googles Litigant." www.socialnetworkinglawblog.com/2009/10/judge-faces-public-reprimand-after-he.html  (last visited February 2, 2011)

Steketee, M. W., and A. Carlson (2002). Developing CCJ/COSCA Guidelines for Public Access to Court Records: A National Project to Assist State Courts. Arlington, VA, and Denver, CO: National Center for State Courts and Justice Management Institute.

Stone, B. (2011). "For Web’s New Wave, Sharing Details Is the Point," New York Times, April 23, p. A1.

"Twitter 1, CNN 0" (2009). The Economist, June 18.

Weiner, J. (2010). This Is Not Florida: How Al Franken Won the Minnesota Senate Election Recount. Minneapolis: University of Minnesota Press.Cases

In re Methyl Teritary Butyl Ether Products Liability Litigation, Nos. 00 Civ. 1898, 04 Civ 3417, 2010 WL 3720406 (S.D.N.Y. 2010).

National Day Laborer Organizing Network v. United States Immigration and Customs Enforcement Agency, 10 civ. 3488, (S.D.N.Y., Feb. 7, 2011).

People v. McNeely, No. D048692, 2007 WL 1723711 (Cal. App. 4 Dist. June 14, 2007).

State v. Cecil, 655 S.E.2d 517 (2007).

United States v. Ebron, No. 1:08-CR-36, 2010 WL 413239 (E.D. Tex. 2010).

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

Wardlaw v. State, 971 A.2d 331 (Md. Ct. App. 2009).