You're Out Of Order

There's a very interesting article about public access to federal court records (PACER - public access to court electronic records) on Ars Technica. BTW, let preface that my comments refer to District courts and not Bankruptcy courts.

[Steve] Schultze and [James] Grimmelmann agree that the solution to PACER's problems is for the courts to make court records available for free download. Schultze points to a recent paper from Princeton's Center for Information Technology Policy arguing that governments should stick to releasing raw information and allow private parties to build organization and search tools. Schultze predicts that if private parties were given free access to the raw PACER documents, they would quickly build websites that surpass PACER in functionality and ease-of-use.

While this is possible, it's not as easy as it seems. Some court records are ex parte, which is essentially a communication between an attorney and the court from which the opposing attorney(s), along with the public, are excluded. Anyone viewing the docket report will see there was a communication but its contents will not be revealed by the court. Sealed documents are filed to protect information. It could be a company's trade secret, a juvenile's privacy, or even a defendant's cooperation with the prosecution in a criminal trial. In criminal cases the fact that there are missing document numbers on a case's docket report could lead someone to believe "something" is going on. And like a puzzle, sometimes what isn't there can help you determine what can go there. So there are some tricky issues involved.

The federal courts deal with a variety of sensitive issues, including bankruptcy, drug charges, and a variety of civil litigation, and it is relatively common for these proceedings to reveal sensitive personal information such as Social Security numbers and dates of birth. Current law requires that such information be redacted from documents before making them available to the public, but the courts, shielded by the practical obscurity afforded by PACER's paywall, have not done a good job of enforcing this requirement. So before making PACER significantly more open, Congress may need to provide the courts with more funding to hire enough clerks to thoroughly redact documents.

Have a look at the Federal Rules of Civil Procedure and the Federal Rules for Criminal Procedure and you'll find that redaction is the responsibility of the person making the filing. In most cases that person is the attorney. Redaction is the court's responsibility if the court files the document as in the case of an order or opinion. The Clerk's Office is responsible for keeping an accurate record so it's not like case administrators can alter filings in the interest of redaction. The actual process may differ from court to court, but generally if a case administrator finds that a document contains information that should be redacted, they will bring it to the attorney's attention. Again, it's up to that attorney to properly redact the document. The redaction requirement in the Federal Rules took effect Dec 1, 2007, and is not retroactive so it's easy to find documents containing information that should be redacted by today's standard.

Aside from that, I think it would be great for the federal courts to provide easier, user-friendly, and free access to filings.