TO: Members of the Judicial Council

FROM: Court Technology Advisory Committee
Hon. Joanne C. Parrilli, Chair
Charlene Hammitt, Manager, Information Services Division,
415-865-7410, charlene.hammitt@jud.ca.gov
Melissa Johnson, Assistant General Counsel
Joshua Weinstein, Attorney

DATE: December 11, 2001

SUBJECT: Public Access to Electronic Trial Court Records (adopt Cal. Rules of Court, rules 2070­2076; repeal Cal. Standards Jud. Admin., § section 38)
(Action Required)

Introduction
This report supplements the one submitted to the Judicial Council at its October 2001 business meeting. At that meeting, the council asked the Court Technology Advisory Committee and staff to provide answers to certain questions and deferred action on the proposed rules to its December meeting. Memoranda addressing the issues raised at the October meeting are attached to this report as Appendixes A through E.

Recently, the Court Technology Advisory Committee met and approved a set of revised rules. These revised rules are equivalent in substance to the advisory committee's original proposal but are improved in organization and clarity. In addition, the Advisory Committee Comments to the rules were reduced in length to provide only the information that is the most critical to understanding and applying the rules.

Because the council deferred action on this item, the advisory committee now recommends that the proposed rules go into effect on July 1, 2002, rather than January 1, 2002, as previously proposed. The delayed effective date will give the courts time to learn about and comply with the rules.

Recommendation
The Court Technology Advisory Committee recommends that the Judicial Council, effective July 1, 2002:

1. Adopt rules 2070­2076 of the California Rules of Court to establish (a) statewide policies on public access to trial courts' electronic records that provide reasonable electronic access while protecting privacy and other legitimate interests and (b) statewide policies regarding courts' contracts with vendors to provide public access to electronic court records.

2. Repeal section 38 of the California Standards of Judicial Administration.

The text of the proposed rules and the standard to be repealed is attached at pages 5­13.

Summary of Major Provisions of the Proposed Rules

The rules apply to records that trial courts maintain in electronic form. They do not require courts to maintain any records electronically, but if a court does, the rules specify the requirements for providing public access to those records.

The rules require courts to provide electronic access to the following types of records to the extent feasible, both remotely and in the courthouse:

Registers of actions and calendars in all cases; and
Other records in civil cases (rule 2073(c)).

The register of actions includes the title of each cause, the date it commenced, "and a memorandum of every subsequent proceeding in the action with its date." (Gov. Code, § 69845.) Thus, basic information about each case could be accessed through computer terminals at the courthouse or remotely (over the Internet).

Additional records in the following types of cases would be available electronically at the courthouse to the extent feasible, but not remotely:

Family law;
Juvenile;
Guardianship or conservatorship;
Mental health;
Criminal; and
Civil harassment (rule 2073).

If electronic access is not feasible because a court does not have the resources or technical capacity to provide it, the court must still make all of its electronic records available in some form-for example, by printing out copies of the information contained in electronic records (rule 2073(a)). However, the court may not provide electronic access to any part of a record that is sealed by court order or made confidential by law (rule 2073(a)).

When a court provides electronic access to records other than calendars, registers, and indexes, it may do so only on a case-by-case basis, using the case number, caption, or name of party to identify the record. Likewise, the court may not provide "bulk distribution" of its electronic records, other than registers, calendars, and indexes. "Bulk distribution" is defined as "distribution of all, or a significant subset, of the court's electronic records."

Rationale for Recommendation
The rationale for the recommendation is contained in the October 2001 report and in the memoranda in Appendixes A through E, which address the following issues:

A. What are the arguments for and against limiting electronic access to a case-by-case basis?

B. Why should the rule prohibit remote electronic access (other than to the register and calendar) in case types other than civil?

C. What are other jurisdictions doing to provide electronic access to trial court records?

D. What is the electronic access environment in California courts?
What electronic access is offered by California courts?
Do California courts have the ability to provide remote electronic access?
What is being done to improve courts' ability to provide electronic access?

E. Has the Judicial Council adopted relevant plans and policies?

Comments From Interested Parties
The comments on the proposal as it circulated for comment are summarized in the October 2001 report. After the October meeting, a coalition of newspaper and press-related organizations, represented by Gray, Cary & Freidenrich, submitted a letter with additional comments in response to the October 2001 report and proposal. The Gray Cary letter is attached at Appendix F.

Most of the points in the letter have been addressed in the earlier report or in the materials in appendixes A and E. However, one objection raised requires clarification. Gray Cary objects to the "case-by-case" limitation on electronic access on the following basis:

The proposed rules would . . . prohibit access where, for example, a requestor wants to see the cases filed on a particular day and does not know the case numbers, captions, or parties. The requestor would not have the necessary data to submit a request that would comply with the rule, and even if he or she did the rule would not permit the requestor to obtain more than one case at a time. Similarly, a requestor who wanted to see all cases filed by or against a particular party and had the name of the party would be precluded from obtaining more than a single case. (Gray Cary letter, Appendix F, p. 2.)

This objection misinterprets the rule. First, a reporter who wanted to see all of the cases filed on a particular day could identify the names or numbers of those cases by accessing the register of actions, which would be available remotely for all case types and to which the case-by-case limitation does not apply. With the case names or numbers supplied by the register, the reporter could then access the files (if available electronically) for each of the cases filed.

Second, the rules would not prohibit a reporter from accessing more than one case involving a single party. It is contemplated that a search for cases by party name would produce a list of cases involving that party, each of which the reporter could access on a case-by-case basis.

Rules 2070, 2071, 2072, 2073, 2074, 2075, and 2076 of the California Rules of Court are adopted, effective July 1, 2002, to read:

DIVISION VI
RULES FOR FAX AND ELECTRONIC FILING AND SERVICE
CHAPTER 1. FAX FILING AND SERVICE RULES ***
CHAPTER 2. ELECTRONIC FILING AND SERVICE RULES
CHAPTER 3. PUBLIC ACCESS TO ELECTRONIC TRIAL COURT RECORDS

Rule 2070. Statement of purpose

(a) [Intent] The rules in this chapter are intended to provide the public with reasonable access to trial court records that are maintained in electronic form, while protecting privacy interests.

(b) [Benefits of electronic access] Improved technologies provide courts with many alternatives to the historical paper-based record receipt and retention process, including the creation and use of court records maintained in electronic form. Providing public access to trial court records that are maintained in electronic form may save the courts and the public time, money, and effort and encourage courts to be more efficient in their operations. Improved access to trial court records may also foster in the public a more comprehensive understanding of the trial court system.

(c) [No creation of rights] These rules are not intended to give the public a right of access to any record that they are not otherwise entitled to access.

Advisory Committee Comment

The rules acknowledge the benefits that electronic court records provide but attempt to limit the potential for unjustified intrusions into the privacy of individuals involved in litigation that can occur as a result of remote access to electronic court records. The proposed rules take into account the limited resources currently available in the trial courts. It is contemplated that the rules may be modified to provide greater electronic access as the courts' technical capabilities improve, and with the knowledge gained from the experience of the courts in providing electronic access under these rules.

Rule 2071. Authority and applicability

(a) [Authority] The rules in this chapter are adopted under the authority granted to the Judicial Council by article VI, section 6 of the California Constitution and Code of Civil Procedure section 1010.6.

(b) [Applicability] The rules in this chapter apply only to trial court records.

(c) [Access by parties and attorneys] The rules in this chapter apply only to access to court records by the public. They do not limit access to court records by a party to an action or proceeding, by the attorney of a party, or by other persons or entities that are entitled to access by statute or California Rules of Court.

Rule 2072. Definitions

(a) [Court record] As used in this chapter, "court record" is any document, paper, or exhibit filed by the parties to an action or proceeding; any order or judgment of the court; and any item listed in subdivision (a) of Government Code section 68151, excluding any reporter's transcript for which the reporter is entitled to receive a fee for any copy. The term does not include the personal notes or preliminary memoranda of judges or other judicial branch personnel.

(b) [Electronic record] As used in this chapter, "electronic record" is a computer-ized court record, regardless of the manner in which it has been computerized. The term includes both a document that has been filed electronically and an electronic copy or version of a record that was filed in paper form. The term does not include a court record that is maintained only on microfiche, paper, or any other medium that can be read without the use of an electronic device.

(c) [The public] As used in this chapter, "the public" is an individual, a group, or an entity, including print or electronic media, or the representative of an individual, a group, or an entity.

(d) [Electronic access] "Electronic access" means computer access to court records available to the public through both public terminals at the courthouse and remotely, unless otherwise specified in these rules.

Rule 2073. Public access

(a) [General right of access] All electronic records must be made reasonably available to the public in some form, whether in electronic or in paper form, except those that are sealed by court order or are made confidential by law.

(b) [Electronic access required to extent feasible] A court that maintains the following records in electronic form must provide electronic access to them, both remotely and at the courthouse, to the extent it is feasible to do so.

(1) Register of actions (as defined in Gov. Code, § 69845), calendars, and indexes; and

(2) All records in civil cases, except those listed in (c).

(c) [Courthouse electronic access only] A court that maintains the following records in electronic form must provide electronic access to them at the courthouse, to the extent it is feasible to do so, but may provide remote electronic access only to the records governed by (b)(1):

(1) Any record in a proceeding under the Family Code, including, but not limited to, proceedings for dissolution, legal separation, and nullity of marriage; child and spousal support proceedings; and child custody proceedings;

(2) Any record in a juvenile court proceeding;

(3) Any record in a guardianship or conservatorship proceeding;

(4) Any record in a mental health proceeding;

(5) Any record in a criminal proceeding; and

(6) Any record in a civil harassment proceeding under Code of
Civil Procedure section 527.6.

(d) ["Feasible" defined] The requirement that a court provide electronic access to its electronic records "to the extent it is feasible to do so" means that a court is required to provide electronic access to the extent it determines it has the resources and technical capacity to do so.

(e) [Access only on case-by-case basis] A court may only grant electronic access to an electronic record when the record is identified by the number of the case, the caption of the case, or the name of a party, and only on a case-by-case basis. This case-by-case limitation does not apply to a calendar, register of actions, or index.

(f) [Bulk distribution] A court may provide bulk distribution of only its electronic calendar, register of actions, and index. "Bulk distribution" means distribution of all, or a significant subset, of the court's electronic records.

(g) [Records that become inaccessible] If an electronic record to which the court has provided electronic access is made inaccessible to the public by court order or by operation of law, the court is not required to take action with respect to any copy of the record that was made by the public before the record became inaccessible.

(h) [Off-site access] Courts should encourage availability of electronic access to court records at public off-site locations.

Advisory Committee Comment

The rule allows a level of access to all electronic records that is at least equivalent to the access that is available for paper records and, for some types of records, is much greater. At the same time, it seeks to protect legitimate privacy concerns.

Subdivision (c) excludes certain records (those other than the register, calendar, and indexes) in specified types of cases from remote electronic access. The committee recognized that while these case records are public records and should remain available at the courthouse, either in paper or electronic form, they often contain sensitive personal information. The court should not publish that information over the Internet.

Subdivisions (e) and (f) limit electronic access to records (other than the register, calendars, or indexes) to a case-by-case basis and prohibit bulk distribution of those records. These limitations are based on the qualitative difference between obtaining information from a specific case file and obtaining bulk information that may be manipulated to compile personal information culled from any document, paper, or exhibit filed in a lawsuit. This type of aggregate information may be exploited for commercial or other purposes unrelated to the operations of the courts, at the expense of privacy rights of individuals.

Rule 2074. Limitations and Conditions

(a) [Means of access] A court must provide electronic access by means of a network or software that is based on industry standards or is in the public domain.

(b) [Official record] Unless electronically certified by the court, a trial court record available by electronic access does not constitute the official record of the court.

(c) [Conditions of use by persons accessing records] A court may condition electronic access to its records on (1) the user's consent to access the records only as instructed by the court and (2) the user's consent to the court's monitoring of access to its records. A court must give notice of these
conditions, in any manner it deems appropriate. The court may deny access to a member of the public for failure to comply with any of these conditions of use.

(d) [Notices to persons accessing records] A court must give notice of the following information to members of the public accessing its electronic records, in any manner it deems appropriate:

(1) The court staff member to contact about the require-ments for accessing the court's records electronically.

(2) That copyright and other proprietary rights may apply to information in a case file absent an express grant of additional rights by the holder of the copyright or other proprietary right. The notice should indicate that (A) use of such information is permissible only to the extent permitted by law or court order and (B) any use inconsistent with proprietary rights is prohibited.

(3) Whether electronic records constitute the official records of the court. The notice should indicate the procedure and any fee required for obtaining a certified copy of an official record of the court.

(4) Any person who willfully destroys or alters any court record maintained in electronic form is subject to the penalties imposed by Government Code section 6201.

(e) [Access policy] A court must post a privacy policy on its public-access Web site to inform members of the public accessing its electronic records of the information it collects regarding access transactions and the uses that the court may make of the collected information.

Rule 2075. Contracts with vendors

A court's contract with a vendor to provide public access to its electronic records must be consistent with these rules and must require the vendor to provide public access to court records and to protect the confidentiality of court records as required by law or by court order. Any contract between a court and a vendor to provide public access to the court's records maintained in electronic form must specify that the court is the owner of these records and has the exclusive right to control their use.

Rule 2076. Fees for electronic access

A court may impose fees for the costs of providing public access to its electronic records, as provided by Government Code section 68150(h). On request, a court must provide the public with a statement of the costs on which these fees are based. To the extent that public access to a court's electronic records is provided exclusively through a vendor, the court must ensure that any fees the vendor imposes for the costs of providing access are reasonable.

Section 38 of the California Standards of Judicial Administration is repealed, effective July 1, 2002.

Sec. 38. Access to electronic records

(a) [Intent] Improved technologies provide courts with many alternatives to the historical paper-based record receipt and retention process, including the creation and use of electronic records. Access to trial courts' electronic records can save the public time, money, and effort and encourage the courts to be efficient in their operations. Improved access to court records may also foster a more comprehensive understanding of the trial court system. Because of such benefits, trial courts are encouraged to explore possibilities for creating electronic court records and to offer public access to such records if their resources permit. Such access should not harm legitimate privacy interests or compromise protections established by law or court order.

(b) [Definitions] The following definitions apply to this standard:

(1) A "record" is any information that is part of an official case file of a court, that constitutes court action, or that otherwise reflects an official action of a court. Records include those items listed in Government Code section 68151(a). Records do not include personal notes or preliminary memoranda of judges or other judicial branch personnel.

(2) An "electronic record" is any record that is accessible electronically, regardless of how it was created. The term does not include records on microfiche, paper, or any other medium that can be read without the use of an electronic or mechanical device.

(3) "Access" is the ability to obtain or make use of electronic records by any means.

(4) "Public access" is access that is not restricted by law or an order of the court.

(5) A "summary report" is a compilation of public records that is produced in the ordinary course of business.

(c) [Scope] This standard applies only to public access to the electronic records that trial courts prepare, own, use, or retain. The standard does not apply to electronic access by a person who is a party to a case or the attorney of such a person, the electronic filing of documents, or the electronic distribution of any court calendar records. A court should not grant access to an electronic record that is sealed, is made confidential, or is required to be expunged after a time or event determined by law or an order of the court. Cases involving family law, child support, juvenile law, mental health, probate, criminal law, or public offenses, as they are defined in Penal Code section 15, should not be included in electronic records made available through remote access.

(d) [Policies] The objective of this standard is to provide a trial court ("a court") with a reasonable framework for providing public access ("access") to its electronic records.

(1) (Electronic records) A court should grant access to an electronic record only when the record is identified by the name or number of a case and only on a case-by-case basis. A court need not grant access to all or part of an electronic record if access is not feasible because of the court's resource limitations.

(2) (Summary reports) A court may provide access to electronic versions of summary reports.

(3) (Direct electronic access for the public) Direct electronic access to court records should be reasonably available to the public remotely, through the Internet, or by means of software based on industry standards or in the public domain. When feasible, remote access should be available at public off-site locations such as public libraries. Access should also be available at public terminals at the courthouse.

(4) (Contracts with vendors) A court that elects to contract with a vendor to release its records electronically should, in accordance with these policies, require the vendor to protect confidentiality as required by law or court order and should provide the public with direct electronic access to such records without requiring access through the vendor.

(5) (Disclaimers) As appropriate, a court should provide disclaimers regarding the accuracy of its electronic records.

(6) (Information on access) A court that provides access to its electronic records should provide the public with information on the requirements for access.

(e) [Evaluation] Any trial court that provides public access to its electronic records should submit to the Judicial Council a copy and an evaluation of its access policies as directed by the council.