Privacy and Court Records: Online Access and the Loss of Practical Obscurity

Balancing transparency and privacy in court records requires transferring responsibility from court staff to litigants

Court records present a conundrum for privacy advocates. Public access to the courts has long been a fundamental tenant of American democracy, helping to ensure that our system of justice functions fairly and that citizens can observe the actions of their government. Yet court records contain an astonishing amount of private and sensitive information, ranging from social security numbers to the names of sexual assault victims. Until recently, the privacy harms that attended the public disclosure of court records were generally regarded as insignificant because court files were difficult to search and access. But this “practical obscurity” is rapidly disappearing as the courts move from the paper-based world of the twentieth century to an interconnected, electronic world where physical and temporal barriers to information are eroding.

These changes are prompting courts — and increasingly, legislatures — to reconsider public access to court records. Although this reexamination can be beneficial, a number of courts are abandoning the careful balancing of interests that has traditionally guided judges in access disputes and instead are excluding whole categories of information, documents, and cases from public access. This approach, while superficially appealing, is contrary to established First Amendment principles that require case-specific analysis before access can be restricted and is putting at risk the public’s ability to observe the functioning of the courts and justice system.

This article pushes back against the categorical exclusion of information in court records. In doing so, it makes three core claims. First, the First Amendment provides a qualified right of public access to all court records that are material to a court’s exercise of its adjudicatory power. Second, before a court can restrict public access, it must engage in a case-specific evaluation of the privacy and public access interests at stake. Third, per se categorical restrictions on public access are not permissible.

These conclusions do not leave the courts powerless to protect privacy, as some scholars assert. We must discard the notion that the protection of privacy is exclusively the job of judges and court staff. Instead, we need to shift the responsibility for protecting privacy to lawyers and litigants, who should not be permitted to include highly sensitive information in court files if it is not relevant to the case. Of course, we cannot eliminate all private and sensitive information from court records, but as long as courts continue to provide physical access to their records, the First Amendment does not preclude court administrators from managing electronic access in order to retain some of the beneficial aspects of practical obscurity. By minimizing the inclusion of unnecessary personal information in court files and by limiting the extent of electronic access to certain types of highly sensitive information, we can protect privacy while at the same time ensuring transparency and public accountability.

First Amendment gives Americans the right to access to information held by the courts

“Publicity is the very soul of justice,” legal philosopher Jeremy Bentham wrote in 1827. Regrettably, lady justice is at risk of losing her soul. In courts across the country, secrecy is increasingly the norm. Indeed, the extent of secrecy in American courts is astonishing, especially given the assumption by many that the First Amendment guarantees a right of public access to the courts. In reality, the United States Supreme Court has explicitly held only that there is a First Amendment right of public access to criminal trials and pre-trial proceedings. The Court has never addressed the question of whether there is a constitutional right of access to civil proceedings or to court records. Moreover, the Court’s last pronouncement on this issue occurred more than a quarter of a century ago and left the lower courts with a confusing and inconsistent doctrinal roadmap for dealing with public access questions. In the intervening decades, public access to the courts has been quietly under siege.

This is a critical time for court transparency because the courts, like so many institutions of government, are in the midst of a transformation from the largely paper-based world of the twentieth century to an interconnected, electronic world where physical and temporal barriers to information are disappearing. Not surprisingly, the shift to electronic access to the courts can implicate important privacy interests. As a result of these and other concerns, a number of courts and legislatures are considering sharply limiting public access to certain court proceedings and records.

By focusing on the structural role the First Amendment plays in our constitutional system, this article makes two related arguments. First, a central purpose of the First Amendment is to ensure that citizens can effectively participate in and contribute to our republican system of self-government. Second, in order to effectuate this goal, the First Amendment must be understood to embody an affirmative right of access to information held by the courts, which by virtue of their unique institutional position possess information that is essential for the public to effectively evaluate the workings of government and therefore to act as sovereigns over the government. Drawing on these conclusions, this article reworks existing First Amendment doctrine to shift the emphasis away from the question of whether the public has a right of access to individual judicial proceedings or records to whether the interests supporting secrecy outweigh the structural benefits of public access. This reworking of public access doctrine provides a principled way for courts to evaluate the interests in secrecy while at the same time ensuring that the public’s right of access to the courts is retained.