Court Admin./Case Mgmt. App. A-1

Agenda F-7 (Appendix A)

Court Admin./Case Mgmt.

 September 2001

REPORT ON PRIVACY AND PUBLIC ACCESS 

TO ELECTRONIC CASE FILES

 Judicial Conference Committee on 

Court Administration and Case Management

Reviewed by the Committees on Court Administration

 and Case Management, Criminal Law, 

Automation and Technology, Rules of Practice

 and Procedure and the Administration of the 

Bankruptcy System and submitted to

 the Judicial Conference for approval

June 26, 2001
Court Admin./Case Mgmt. App. A-2
Court Admin./Case Mgmt. App. A- 3

Report of the Judicial Conference Committee on Court Administration and Case

Management on Privacy and Public Access to Electronic Case Files

The Judicial Conference of the United States requested that its Committee on Court

Administration and Case Management examine issues related to privacy and public access to electronic

case files. The Committee on Court Administration and Case Management formed a special

subcommittee for this purpose. This subcommittee, known as the Subcommittee on Privacy and Public

Access to Electronic Case Files, consisted of four members of the Committee on Court Administration

and Case Management: Judge John W. Lungstrum, District of Kansas, Chair; Judge Samuel Grayson

Wilson, Western District of Virginia; Judge Jerry A. Davis, Magistrate Judge, Northern District of

Mississippi; and Judge J. Rich Leonard, Bankruptcy Judge, Eastern District of North Carolina, and one

member from each of four other Judicial Conference Committees (liaison Committees): Judge Emmet

Sullivan, District of Columbia, liaison from the Committee on Criminal Law; Judge James Robertson,

District of Columbia, liaison from the Committee on Automation and Technology; Judge Sarah S.

Vance, Eastern District of Louisiana, liaison from the Committee on the Administration of the

Bankruptcy System; and Gene W. Lafitte, Esq., Liskow and Lewis, New Orleans, Louisiana, liaison

from the Committee on the Rules of Practice and Procedure. After a lengthy process described below,

the Subcommittee on Privacy and Public Access to Electronic Case Files, drafted a report containing

recommendations for a judiciary-wide privacy and access policy. 

The four liaison Committees reviewed the report and provided comments on it to the full

Committee on Court Administration and Case Management. After carefully considering these

comments, as well as comments of its own members, the Committee on Court Administration and

Case Management made several changes to the subcommittee report, and adopted the amended

report as its own. 

Brief History of the Committee’s Study of Privacy Issues

The Committee on Court Administration and Case Management, through its Subcommittee on

Privacy and Public Access to Electronic Case Files (the Subcommittee) began its study of privacy and

security concerns regarding public electronic access to case file information in June 1999. It has held

numerous meetings and conference calls and received information from experts and academics in the

privacy arena, as well as from court users, including judges, court clerks, and government agencies. As

a result, in May 2000, the Subcommittee developed several policy options and alternatives for the

creation of a judiciary-wide electronic access privacy policy which were presented to the full

Committee on Court Administration and Case Management and the liaison committees at their Summer

2000 meetings. The Subcommittee used the opinions and feedback from these committees to further

refine the policy options. 
Court Admin./Case Mgmt. App. A-4

 In November 2000, the Subcommittee produced a document entitled “Request for Comment

on Privacy and Public Access to Electronic Case Files,” a copy of which is attached. This document

contains the alternatives the Subcommittee perceived as viable following the committees’ feedback. 

The Subcommittee published this document for public comment from November 13, 2000 through

January 26, 2001. A website at www.privacy.uscourts.gov was established to publicize the comment

document and to collect the comments. Two hundred forty-two comments were received from a very

wide range of interested persons including private citizens, privacy rights groups, journalists, private

investigators, attorneys, data re-sellers and representatives of the financial services industry. Those

comments, in summary and full text format, are available at that website.

On March 16, 2001, the Subcommittee held a public hearing to gain further insight into the

issues surrounding privacy and access. Fifteen individuals who had submitted written comments made

oral presentations to and answered the questions of Subcommittee members. Following the hearing,

the Subcommittee met, considered the comments received, and reached agreement on the policy

recommendations contained in this document.

Background

Federal court case files, unless sealed or otherwise subject to restricted access by statute,

federal rule, or Judicial Conference policy, are presumed to be available for public inspection and

copying. See Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (holding that there is a

common law right “to inspect and copy public records and documents, including judicial records and

documents"). The tradition of public access to federal court case files is also rooted in constitutional

principles. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-78 (1980). However,

public access rights are not absolute, and courts balance access and privacy interests in making

decisions about the public disclosure and dissemination of case files. The authority to protect personal

privacy and other legitimate interests in nondisclosure is based, like public access rights, in common law

and constitutional principles. See Nixon, 435 U.S. at 596 (“[E]very court has supervisory power over

its own records and files, and access has been denied where court files might have become a vehicle

for improper purposes”).

 The term “case file” (whether electronic or paper) means the collection of documents officially

filed by the litigants or the court in the context of litigation, the docket entries that catalog such filings,

and transcripts of judicial proceedings. The case file generally does not include several other types of

information, including non-filed discovery material, trial exhibits that have not been admitted into

evidence, drafts or notes by judges or court staff, and various documents that are sometimes known as

“left-side” file material. Sealed material, although part of the case file, is accessible only by court order.

Certain types of cases, categories of information, and specific documents may require special

protection from unlimited public access, as further specified in the sections on civil, criminal, bankruptcy

and appellate case files below. See United States Department of Justice v. Reporters Committee

for Freedom of the Press, 489 U.S. 749 (1989) (noting that technology may affect the balance

between access rights and privacy and security interests). To a great extent, these recommendations 
Court Admin./Case Mgmt. App. A-5

rely upon counsel and litigants to act to protect the interests of their clients and themselves. This may

necessitate an effort by the courts to educate the bar and the public about the fact that documents filed

in federal court cases may be available on the Internet. 

It is also important to note that the federal courts are not required to provide electronic access

to case files (assuming that a paper file is maintained), and these recommendations do not create any

entitlement to such access. As a practical matter, during this time of transition when courts are

implementing new practices, there may be disparity in access among courts because of varying

technology. Nonetheless, the federal courts recognize that the public should share in the benefits of

information technology, including more efficient access to court case files.

These recommendations propose privacy policy options which the Committee on Court

Administration and Case Management (the Committee) believes can provide solutions to issues of

privacy and access as those issues are now presented. To the extent that courts are currently

experimenting with procedures which differ from those articulated in this document, those courts should

reexamine those procedures in light of the policies outlined herein. The Committee recognizes that

technology is ever changing and these recommendations may require frequent re-examination and

revision. 

Recommendations

The policy recommended for adoption by the Judicial Conference is as follows:

General Principles

1. There should be consistent, nationwide policies in federal courts in order to ensure that

similar privacy protections and access presumptions apply regardless of which federal

court is the custodian of a particular case file.

2. Notice of these nationwide policies should be given to all litigants in federal court so

that they will be aware of the fact that materials which they submit in a federal court

proceeding could become available on the Internet.

3. Members of the bar must be educated about the policies and the fact that they must

protect their clients by carefully examining the documents that they file in federal court

for sensitive, private information and by making the appropriate motions to protect

documents from electronic access when necessary.

4. Except where otherwise noted, the policies apply to both paper and electronic files.

5. Electronic access to docket sheets through PACERNet and court opinions through

court websites will not be affected by these policies. 
Court Admin./Case Mgmt. App. A-6

6. The availability of case files at the courthouse will not be affected or limited by these

policies.

7. Nothing in these recommendations is intended to create a private right of action or to

limit the application of Rule 11 of the Federal Rules of Civil Procedure.

Case Types

Civil Case Files

Recommendation: That documents in civil case files should be made available electronically

to the same extent that they are available at the courthouse with one exception (Social

Security cases should be excluded from electronic access) and one change in policy (the

requirement that certain “personal data identifiers” be modified or partially redacted by the

litigants). These identifiers are Social Security numbers, dates of birth, financial account

numbers and names of minor children.

The recommendation provides for liberal remote electronic access to civil case files while also

adopting some means to protect individual privacy. Remote electronic access will be available only

through the PACERNet system which requires registration with the PACER service center and the use

of a log in and password. This creates an electronic trail which can be retraced in order to determine

who accessed certain information if a problem arises. Further, this recommendation contemplates that

certain personal, identifying information will not be included in its full and complete form in case

documents, whether electronic or hard copy. For example, if the Social Security number of an

individual must be included in a document, only the last four digits of that number will be used whether

that document is to be filed electronically or at the courthouse. If the involvement of a minor child must

be mentioned, only that child’s initials should be used; if an individual’s date of birth is necessary, only

the year should be used; and, if financial account numbers are relevant, only the last four digits should

be recited in the document. It is anticipated that as courts develop local rules and instructions for the

use and implementation of Electronic Case Filing (ECF), such rules and instructions will include

direction on the truncation by the litigants of personal identifying information. Similar rule changes

would apply to courts which are imaging documents. 

Providing remote electronic access equal to courthouse access will require counsel and pro se

litigants to protect their interests through a careful review of whether it is essential to their case to file

certain documents containing private sensitive information or by the use of motions to seal and for

protective orders. It will also depend upon the discretion of judges to protect privacy and security

interests as they arise in individual cases. However, it is the experience of the ECF prototype courts

and courts which have been imaging documents and making them electronically available that reliance

on judicial discretion has not been problematic and has not dramatically increased or altered the

amount and nature of motions to seal. It is also the experience of those courts that have been making
Court Admin./Case Mgmt. App. A-7

their case file information available through PACERNet that there have been virtually no reported

privacy problems as a result.

This recommended “public is public” policy is simple and can be easily and consistently applied

nationwide. The recommended policy will “level the geographic playing field” in civil cases in federal

court by allowing attorneys not located in geographic proximity to the courthouse easy access. Having

both remote electronic access and courthouse access to the same information will also utilize more fully

the technology available to the courts and will allow clerks’ offices to better and more easily serve the

needs of the bar and the public. In addition, it might also discourage the possible development of a

“cottage industry” headed by data re-sellers who, if remote electronic access were restricted, could go

to the courthouse, copy the files, download the information to a private website, and charge for access

to that website, thus profiting from the sale of public information and undermining restrictions intended

to protect privacy. 

Each of the other policy options articulated in the document for comment presented its own

problems. The idea of defining what documents should be included in the public file was rejected

because it would require the courts to restrict access at the courthouse to information that has

traditionally been available from courthouse files. This would have the net effect of allowing less overall

access in a technological age where greater access is easy to achieve. It would also require making the

very difficult determination of what information should be included in the public file. 

The Committee seriously considered and debated at length the idea of creating levels of access

to electronic documents (i.e., access to certain documents for specific users would be based upon the

user’s status in the case). The Committee ultimately decided that levels of access restrictions were too

complicated in relation to the privacy benefits which could be derived therefrom. It would be difficult,

for example, to prohibit a user with full access to all case information, such as a party to the case, from

downloading and disseminating the restricted information. Also, the levels of access would only exist in

relation to the remote electronic file and not in relation to the courthouse file. This would result in

unequal remote and physical access to the same information and could foster a cottage industry of

courthouse data collection as described above. 

Seeking an amendment to the Federal Rules of Civil Procedure was not recommended for

several reasons. First, any such rules amendment would take several years to effectuate, and the

Committee concluded that privacy issues need immediate attention. There was some discussion about

the need for a provision in Fed. R. Civ. P. 11 providing for sanctions against counsel or litigants who,

as a litigation tactic, intentionally include scurrilous or embarrassing, irrelevant information in a

document so that this information will be available on the Internet. The Committee ultimately

determined that, at least for now, the current language of Fed. R. Civ. P. 11 and the inherent power of

the court are sufficient to deter such actions and to enforce any privacy policy.

As noted above, this recommendation treats Social Security cases differently from other civil

case files. It would limit remote electronic access. It does contemplate, however, the existence of a

skeletal electronic file in Social Security cases which would contain documents such as the complaint,
Court Admin./Case Mgmt. App. A-8

answer and dispositive cross motions or petitions for review as applicable but not the administrative

record and would be available to the court for statistical and case management purposes. This

recommendation would also allow litigants to electronically file documents, except for the administrative

record, in Social Security cases and would permit electronic access to these documents by litigants

only. 

After much debate, the consensus of the Committee was that Social Security cases warrant

such treatment because they are of an inherently different nature from other civil cases. They are the

continuation of an administrative proceeding, the files of which are confidential until the jurisdiction of

the district court is invoked, by an individual to enforce his or her rights under a government program. 

Further, all Social Security disability claims, which are the majority of Social Security cases filed in

district court, contain extremely detailed medical records and other personal information which an

applicant must submit in an effort to establish disability. Such medical and personal information is

critical to the court and is of little or no legitimate use to anyone not a party to the case. Thus, making

such information available on the Internet would be of little public benefit and would present a

substantial intrusion into the privacy of the claimant. Social Security files would still be available in their

entirety at the courthouse.

Criminal Case Files

 

Recommendation: That public remote electronic access to documents in criminal cases

should not be available at this time, with the understanding that the policy will be reexamined

within two years of adoption by the Judicial Conference. 

The Committee determined that any benefits of public remote electronic access to criminal files

were outweighed by the safety and law enforcement risks such access would create. Routine public

remote electronic access to documents in criminal case files would allow defendants and others easy

access to information regarding the cooperation and other activities of defendants. Specifically, an

individual could access documents filed in conjunction with a motion by the government for downward

departure for substantial assistance and learn details of a defendant’s involvement in the government’s

case. Such information could then be very easily used to intimidate, harass and possibly harm victims,

defendants and their families.

Likewise, routine public remote electronic access to criminal files may inadvertently increase

the risk of unauthorized public access to preindictment information, such as unexecuted arrest and

search warrants. The public availability of this information could severely hamper and compromise

investigative and law enforcement efforts and pose a significant safety risk to law enforcement officials

engaged in their official duties. Sealing documents containing this and other types of sensitive

information in criminal cases will not adequately address the problem, since the mere fact that a

document is sealed signals probable defendant cooperation and covert law enforcement initiatives.

The benefit to the public of easier access to criminal case file information was not discounted

by the Committee and, it should be noted that, opinions and orders, as determined by the court, and
Court Admin./Case Mgmt. App. A-9

criminal docket sheets will still be available through court websites and PACER and PACERNet. 

However, in view of the concerns described above, the Committee concluded that individual safety and

the risk to law enforcement personnel significantly outweigh the need for unfettered public remote

access to the content of criminal case files. This recommendation should be reconsidered if it becomes

evident that the benefits of public remote electronic access significantly outweigh the dangers to victims,

defendants and their families, and law enforcement personnel.

Bankruptcy Case Files

Recommendation: That documents in bankruptcy case files should be made generally

available electronically to the same extent that they are available at the courthouse, with a

similar policy change for personal identifiers as in civil cases; that § 107(b)(2) of the

Bankruptcy Code should be amended to establish privacy and security concerns as a basis

for the sealing of a document; and that the Bankruptcy Code and Rules should be amended

as necessary to allow the court to collect a debtor’s full Social Security number but display

only the last four digits. 

The Committee recognized the unique nature of bankruptcy case files and the particularly

sensitive nature of the information, largely financial, which is contained in these files; while this

recommendation does provide open remote electronic access to this information, it also accommodates

the privacy concerns of individuals. This recommendation contemplates that a debtor’s personal,

identifying information and financial account numbers will not be included in their complete forms on

any document, whether electronic or hard copy (i.e., only the last four digits of Social Security and

financial account numbers will be used). As the recommendation recognizes, there may be a need to

amend the Bankruptcy Code to allow only the last four digits of an individual debtor’s Social Security

number to be used. The bankruptcy court will collect the full Social Security number of debtors for

internal use, as this number appears to provide the best way to identify multiple bankruptcy filings. The

recommendation proposes a minor amendment to § 107(a) to allow the court to collect the full number,

but only display the last four digits. The names of minor children will not be included in electronic or

hard copies of documents. 

As with civil cases, the effectiveness of this recommendation relies upon motions to seal filed by

litigants and other parties in interest. To accomplish this result, an amendment of 11 U.S.C. § 107(b),

which now narrowly circumscribes the ability of the bankruptcy courts to seal documents, will be

needed to establish privacy and security concerns as a basis for sealing a document. Once again, the

experiences of the ECF prototype and imaging courts do not indicate that this reliance will cause a

large influx of motions to seal. In addition, as with all remote electronic access, the information can

only be reached through the log-in and password- controlled PACERNet system. 

The Committee rejected the other alternatives suggested in the comment document for various

reasons. Any attempt to create levels of access in bankruptcy cases would meet with the same

problems discussed with respect to the use of levels of access for civil cases. Bankruptcy cases
Court Admin./Case Mgmt. App. A-10

present even more issues with respect to levels of access because there are numerous interests which

would have a legitimate need to access file information and specific access levels would need to be

established for them. Further, many entities could qualify as a “party in interest” in a bankruptcy filing

and would need access to case file information to determine if they in fact have an interest. It would be

difficult to create an electronic access system which would allow sufficient access for that determination

to be made without giving full access to that entity.

 

The idea of collecting less information or segregating certain information and restricting access

to it was rejected because the Committee determined that there is a need for and a value in allowing the

public access to this information. Further, creating two separate files, one totally open to the public and

one with restricted access, would place a burden on clerks’ offices by requiring the management of two

sets of files in each case. 

Appellate Case Files

Recommendation: That appellate case files be treated at the appellate level the same way in

which they are treated at the lower level. 

This recommendation acknowledges the varying treatment of the different case types at the

lower level and carries that treatment through to the appellate level. For cases appealed to the district

court or the court of appeals from administrative agencies, the documents in the appeal will be treated,

for the purposes of remote electronic access, in the same manner in which they were treated by the

agency. For cases appealed from the district court, the case file will be treated in the manner in which it

was treated by the district court with respect to remote electronic access. 

Attachment
Court Admin./Case Mgmt. App. A-11

Agenda F-7 

(Attachment to Appendix A)

Court Admin./Case Mgmt.

 September 2001

Request for Comment on Privacy and Public Access to Electronic Case

Files

The federal judiciary is seeking comment on the privacy and security implications of providing

electronic public access to court case files. The Judicial Conference of the United States is studying

these issues in order to provide policy guidance to the federal courts. This request for public comment

addresses several related issues:

the judiciary’s plans to provide electronic access to case files through the Internet;

the privacy and security implications of public access to electronic

case files;

potential policy alternatives and the appropriate scope of judicial

branch action in this area.

The judiciary is interested in comments that address any of the issues raised in this document, including

whether it is appropriate for the judiciary to establish policy in this area. All comments should be

received by 5:00 p.m. January 26, 2001 and must include the name, mailing address and phone

number of the commentator. 

All comments should also include an e-mail address and a fax number, where available, as well as an

indication of whether the commentator is interested in participating in a public hearing, if one is held.

The public should be advised that it may not be possible to honor all requests to speak at any such

hearing.

The electronic submission of comments is highly encouraged. Electronic comments may be submitted at

www.privacy.uscourts.gov or via e-mail to Privacy_Policy_Comments@ao.uscourts.gov . Comments

may be submitted by regular mail to The Administrative Office of the United States Courts, Court

Administration Policy Staff, Attn: Privacy Comments, Suite 4-560, One Columbus Circle, N.E.

Washington, DC 20544.

Electronic Public Access to Federal Court Case Files

The federal courts are moving swiftly to create electronic case files and to provide public access to

those files through the Internet. This transition from paper files to electronic files is quickly transforming

the way case file documents may be used by attorneys, litigants, courts, and the public. The creation of

electronic case files means that the ability to obtain documents from a court case file will no longer
Court Admin./Case Mgmt. App. A-12

depend on physical presence in the courthouse where a file is maintained. Increasingly, case files may

be viewed, printed, or downloaded by anyone, at any time, through the Internet.

Electronic files are being created in two ways. Many courts are creating electronic images of all paper

documents that are filed, in effect converting paper files to electronic files. Other courts are receiving

court filings over the Internet directly from attorneys, so that the "original" file is no longer a paper file

but rather a collection of the electronic documents filed by the attorneys and the court. Over the next

few years electronic filing, as opposed to making images of paper documents, will become more

common as most federal courts begin to implement a new case management system, called Case

Management/Electronic Case Files (or "CM/ECF"). That system gives each court the option to create

electronic case files by allowing lawyers and parties to file their documents over the Internet.

The courts plan to provide public access to electronic files, both at the courthouse and beyond the

courthouse, through the Internet. The primary method to obtain access will be through Public Access to

Court Electronic Records (or "PACER"), which is a web-based system that will contain both the

dockets (a list of the documents filed in the case) and the actual case file documents. Individuals who

seek a particular document or case file will need to open a PACER account and obtain a login and

password. After obtaining these, an individual may access case files – whether those files were created

by imaging paper files or through CM/ECF – over the Internet. Public access through PACER will

involve a fee of $.07 per page of a case file document or docket viewed, downloaded or printed. This

compares favorably to the current $.50 per page photocopy charge. Electronic case files also will be

available at public computer terminals at courthouses free of charge.

Potential Privacy and Security Implications of Electronic Case Files

Electronic case files promise significant benefits for the courts, litigants, attorneys, and the public. There

is increasing awareness, however, of the personal privacy implications of unlimited Internet access to

court case files. In the court community, some have begun to suggest that case files – long presumed to

be open for public inspection and copying unless sealed by court order – contain private or sensitive

information that should be protected from unlimited public disclosure and dissemination in the new

electronic environment. Others maintain that electronic case files should be treated the same as paper

files in terms of public access and that existing court practices are adequate to protect privacy interests.

Federal court case files contain personal and sensitive information that litigants and third parties often

are compelled by law to disclose for adjudicatory purposes. Bankruptcy debtors, for example, must

divulge intimate details of their financial affairs for review by the case trustee, creditors, and the judge.

Civil case files may contain medical records, personnel files, proprietary information, tax returns, and

other sensitive information. Criminal files may contain arrest warrants, plea agreements, and other

information that raise law enforcement and security concerns.

Recognizing the need to review judiciary public access policies in the context of new technology, the

Judicial Conference is considering privacy and access issues in order to provide guidance to the courts.
Court Admin./Case Mgmt. App. A-13

The Judicial Conference has not reached any conclusions on these issues, and this request for public

comment is intended as part of the Conference’s ongoing study.

The judiciary has a long tradition – rooted in both constitutional and common law principles – of open

access to public court records. Accordingly, all case file documents, unless sealed or otherwise subject

to restricted access by statute or federal rule, have traditionally been available for public inspection and

copying. The Supreme Court has recognized, however, that access rights are not absolute, and that

technology may affect the balance between access rights and privacy and security interests. See Nixon

v. Warner Communications, Inc., 435 U.S. 589 (1978), and United States Department of Justice

v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). These issues are

discussed in more detail in an Administrative Office staff paper, "Privacy and Access to Electronic

Case Files in the Federal Courts," available on the Internet at www.uscourts.gov/privacyn.pdf .

The Role of the Federal Judiciary

The judiciary recognizes that concern about privacy and access to public records is not limited to the

judicial branch. There is a broader public debate about the privacy and security implications of

information technology. Congress has already responded to some of these concerns by passing laws

that are designed to shield sensitive personal information from unwarranted disclosure. These laws, and

numerous pending legislative proposals, address information such as banking records and other

personal financial information, medical records, tax returns, and Social Security numbers. The executive

branch is also concerned about implications of electronic public access to private information. Most

recently, the President directed the Office of Management and Budget, the Department of Justice, and

the Department of Treasury to conduct a study on privacy and security issues associated with

consumer bankruptcy filings.

Accordingly, the judiciary is interested in receiving comment on the appropriate scope of judicial

branch action, if any, on the broad issue of access to public court records, and the corresponding need

to balance access issues against competing concerns such as personal privacy and security.

Policy Alternatives on Electronic Public Access to Federal Court Case Files

Regardless of what entity addresses the issues of privacy and electronic access to case files, the effort

must be made to balance access and privacy interests in making decisions about the public disclosure

and dissemination of case files. The policy options outlined below are intended to promote consistent

policies and practices in the federal courts and to ensure that similar protections and electronic access

presumptions apply, regardless of which federal court is the custodian of a particular case file. One or

more of the policy options for each type of case file may be recommended to the Judicial Conference

for its consideration. Some, but not all of the options are mutually exclusive.

Civil Case Files
Court Admin./Case Mgmt. App. A-14

1. Maintain the presumption that all filed documents that are not sealed are available both at

the courthouse and electronically.

This approach would rely upon counsel and pro se litigants to protect their interests on a case-by-case

basis through motions to seal specific documents or motions to exclude specific documents from

electronic availability. It would also rely on judges’ discretion to protect privacy and security interests

on a case-by-case basis through orders to seal or to exclude certain information from remote electronic

public access.

2. Define what documents should be included in the "public file" and, thereby, available to

the public either at the courthouse or electronically.

This option would treat paper and electronic access equally and assumes that specific sensitive

information would be excluded from public review or presumptively sealed. It assumes that the entire

public file would be available electronically without restriction and would promote uniformity among

district courts as to case file content. The challenge of this alternative is to define what information

should be included in the public file and what information does not need to be in the file because it is not

necessary to an understanding of the determination of the case or because it implicates privacy and

security interests.

3. Establish "levels of access" to certain electronic case file information.

This contemplates use of software with features to restrict electronic access to certain documents either

by the identity of the individual seeking access or the nature of the document to which access is sought,

or both. Judges, court staff, parties and counsel would have unlimited remote access to all electronic

case files.

This approach assumes that the complete electronic case file would be available for public review at the

courthouse, just as the entire paper file is available for inspection in person. It is important to recognize

that this approach would not limit how case files may be copied or disseminated once obtained at the

courthouse.

4. Seek an amendment to one or more of the Federal Rules of Civil Procedure to account for privacy

and security interests.
Court Admin./Case Mgmt. App. A-15

 

Criminal Case Files

1. Do not provide electronic public access to criminal case files.

This approach advocates the position that the ECF component of the new CM/ECF system should not

be expanded to include criminal case files. Due to the very different nature of criminal case files, there

may be much less of a legitimate need to provide electronic access to these files. The files are usually

not that extensive and do not present the type of storage problems presented by civil files. Prosecution

and defense attorneys are usually located near the courthouse. Those with a true need for the

information can still access it at the courthouse. Further, any legitimate need for electronic access to

criminal case information is outweighed by safety and security concerns. The electronic availability of

criminal information would allow co-defendants to have easy access to information regarding

cooperation and other activities of defendants. This information could then be used to intimidate and

harass the defendant and the defendant’s family. Additionally, the availability of certain preliminary

criminal information, such as warrants and indictments, could severely hamper law enforcement and

prosecution efforts.

2. Provide limited electronic public access to criminal case files.

This alternative would allow the general public access to some, but not all, documents routinely

contained in criminal files. Access to documents such as plea agreements, unexecuted warrants, certain

pre-indictment information and presentence reports would be restricted to parties, counsel, essential

court employees, and the judge.

Bankruptcy Case Files

1. Seek an amendment to section 107 of the Bankruptcy Code .

Section 107 currently requires public access to all material filed with bankruptcy courts and

gives judges limited sealing authority. Recognized issues in this area would be addressed by amending

this provision as follows: 1) specifying that only "parties in interest" may obtain access to certain types

of information; and (2) enhancing the 107(b) sealing provisions to clarify that judges may provide

protection from disclosures based upon privacy and security concerns.

2. Require less information on petitions or schedules and statements filed in bankruptcy

cases.

3. Restrict use of Social Security, credit card, and other account numbers to only the last four

digits to protect privacy and security interests.
Court Admin./Case Mgmt. App. A-16

4. Segregate certain sensitive information from the public file by collecting it on separate

forms that will be protected from unlimited public access and made available only to the

courts, the U.S. Trustee, and to parties in interest.

 Appellate Cases

1. Apply the same access rules to appellate courts that apply at the trial court level.

2. Treat any document that is sealed or subject to public access restrictions at the trial court

level with the same protections at the appellate level unless and until a party challenges the

restriction in the appellate court.