Online Access to Court Records: Some Observations on Privacy Blair Stewart Assistant Commissioner Office of the Privacy Commissioner Contribution to The ARANZ Lecture 2005

What I’m speaking on Just: On-line access to court records I don’t intend to say anything on the law or other aspects of the general topic, but happy to answer questions or speak more broadly in discussion time

Why the interest in on-line access? Technology neutral but powerful Change face of public administration (c.f. Public Records Bill)

What are Court records? Judgments Case documents (e.g. pleadings) Exhibits Information on court administrative systems?

What are the purposes of such records? Purposes of: Records Access

Purposes continue Purposes may differ between: Judgments Case documents Exhibits Administrative information

What is meant by on-line access Free? Subscription? By courts themselves? Secondary publishers? Bulk release? Individual search? Prospectively? Scan back copies?

Some privacy issues Issues with particular courts and tribunals and case types may differ (e.g. criminal; family; coroners, employment) Bulk release and automated harvesting v. individualised search

Some privacy issues Google the enemy of Practical Obscurity

A few other privacy issues People caught in the cross-fire who may be name searched (witnesses, others referred to) Identity theft Sensitive information Personal safety Secondary uses

Solutions? Others have recommended a “go slow” approach, precautionary principle Technological fixes to some issues? Example minimizing data harvesting Limiting what is posted on-line Redacting certain details, manually or automatically Restrictions on access, use Data laboratories for research Statistical and other accountabilities

Privacy Impact Assessment If a major move to putting records on-line mooted, a PIA should be undertaken Administrators should take responsibility to understand the effects and take appropriate measures to protect privacy interests, as they ensure that other genuine (and not spurious) public interests are given effect to

Conclusion Identify purpose of records, and purpose of access Central value of open justice as expressed through public hearings does not necessarily mean unfettered access to records Task to understand the effects and craft innovative responses to protect all the various public interests at issue

Some US resources “Public Records on the Internet: the Privacy Dilemma” Minnesota Supreme Court Advisory Committee report (2004)