1 

### IN THE SUPREME COURT OF THE STATE OF MONTANA

No. AF 06-0377

____________________

IN THE MATTER OF RULES FOR ) ORDER PUBLIC ACCESS TO COURT RECORDS )

_____________ ________

In November 2005, the Supreme Court’s Commission on Technology

established a task force to develop and to recommend to the Court comprehensive

rules to govern electronic access to court reco rds. The task forc e was instructed to

develop their recommendations within the context of the Public’s Right to Know

and the Right of Individual Privacy, gua ranteed, respectively, by Article II,

Sections 9 and 10 of the Montana Constituti on. The task force was co-chaired by

Judy Meadows, State Law Librarian, and Karen Nelson, Director of Information

Technology for this Court, and included representatives from the District Courts

and Courts of Limited Juri sdiction, and the Clerks of Courts thereof; from the

Clerk of the Supreme Court; from the medi a; from the State Bar of Montana; and

from the Montana Advocacy Program.

Following a series of public mee tings between December 2005 and March

2006, the task force drafted comprehensive rules m odeled on national guidelines

published in October 2002 by the National Center for State Courts and the Justice

Management Institute. The rules which the task force draf ted and recommended,

however, were in some cases modified to comply with Ar ticle II, Sections 92 

### and 10 of the Montana Cons titution as well as with Montana statutory law and

jurisprudence. The task force also dr afted a detailed comment ary to each rule

reflecting the rationale underlying the rule.

At its May 15, 2006 meeting, the Commission on Technology unanimously

voted to recommend to this Court the pr oposed rules hereinafter referred to.

The Court expresses its appreciation an d gratitude to the co-chairpersons

and to the members of the task force for their exhaustiv e and diligent work on this

matter and for their service to the c ourts and to the State of Montana.

Having now reviewed these rules a nd commentary, we determine that

before taking further action, the rules a nd commentary should be submitted to the

public for comment.

Therefore,

IT IS ORDERED that the rules refe rred to hereafter by hyperlink be

submitted to the public for comment. A ll comments must be filed in writing with

the Clerk of the Supreme Court, P.O. Box 203003, Helena, MT, 59620-3003, on

or before 5:00 PM, August 23, 2006.

IT IS FURTHER ORDERED th at this Order and these rules, along with the

commentary , be published on the Montana Courts website at

http://www.courts.mt.gov/supreme/proprules.asp , and for the State Bar of

Montana at, http://www.mont anabar.org/ . Persons unable to access these

documents electronically may request a paper copy of th e same through the State3 

### Law Librarian, P.O. Box 203004, Hele na, MT, 59620-3004 ( 406-444-1977) upon

advance payment of reasonable phot ocopying and postage charges.

IT IS FURTHER ORDERED that notice of this Order be served by the

Clerk of this Court either electronically or by mail on the following persons and

organizations:

the Clerk of each District Court of th e State of Montana, with the request

that the Clerk serve each District C ourt Judge in that Clerk’s respective

county;

the Judge of the Worker s’ Compensation Court;

the Chief Judge of the Water Court;

the Supreme Court Administrator, who sh all serve each of the Judges of the

Courts of Limited Jurisdiction and each juvenile probation officer;

the Attorney General for the State of Montana, with the request that he serve each law enforcement agency or organization that he deems appropriate;

the chairperson of the Commission on Courts of Limited Jurisdiction;

the Presidents of the Montana Ju dges’ Association and the Montana Magistrates’ Association;

the Presidents of the Clerk of Court’ s Association for the Clerks of the

District Courts and the Clerks of the Courts of Limited Jurisdiction;

the Directors of the following Department s, with the request that they serve the appropriate persons within their De partments: Administration; Auditor; Corrections; Fish, Wildlife and Parks; Ju stice; Livestock; Public Health and Human Services; Public Instru ction; and Transportation;

the State Appellate Defender and Chief Public Defender;

the Chairperson of the Public Service Commission;

the Legislative Counsel;4 

### the President of th e University System; the De an of the University of Montana School of Law; and the Commissioner of Hi gher Education, with the request that they serve the appropria te persons within their institutions;

the Executive Director of the State Bar of Montana, with the request that he serve appropriate persons and committees within that orga nization and that a copy of this Order be published in the next available issue of The Montana Lawyer ;

task force member Ian Marq uand, with the request that he serve appropriate persons, associations a nd organizations within the print and broadcast

media and the Freedom of In formation Hotline. It is the Court’s hope that the print and broadcast media will give appropriate coverage to this matter and will publicize the hyperlinks wher e interested persons may review the rules and commentary; and

task force member Beth Brenneman on behalf of the Montana Advocacy Program.

Dated this 23 rd 

### day of May, 2006.

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ PATRICIA COTTER

/S/ JOHN WARNER

/S/ BRIAN MORRIS

/S/ JIM RICEDraft-Model Access Rules with Commentary

Page 1 of 44 Privacy and Access Task Force November 2006 

### Model Access Rules with Commentary

-DraftPrivacy and Access Task Force

TABLE OF CONTENTS

PURPOSE .......................................................................................................................

..... 3

SECTION 1.00 – PURPOSE OF THE RULES .................................................................3

WHO HAS ACCESS ........................................................................................................... 7

SECTION 2.00 – WHO HAS ACCE SS UNDER THE RULES .......................................7

ACCESS TO WHAT ........................................................................................................... 9

SECTION 3.00 – DEFINITIONS ......................................................................................9

SECTION 3.10 – DEFINITION OF COURT RECORD ..................................................9

SECTION 3.20 – DEFINITION OF PUBLIC ACCESS ................................................. 11

SECTION 3.30 – DEFINITION OF REMOTE ACCESS ............................................... 12

SECTION 3.40 – DEFINITION OF “IN ELECTRONIC FORM” ................................. 13

SECTION 4.00 – APPLICAB ILITY OF THE RULES ................................................... 15

SECTION 4.10 – GENERAL ACCESS RULE ............................................................... 15

SECTION 4.20 – COURT RECORDS IN ELECTRONIC FORM PRESUMPTIVELY

SUBJECT TO REMOTE ACCE SS BY THE PUBLIC .................................................. 17

SECTION 4.30 – REQUESTS FOR BULK DISTRIBUTION OF COURT

RECORDS .................................................................................................................... ... 19

SECTION 4.40 – ACCESS TO COMP ILED INFORMATION FROM COURT

RECORDS .................................................................................................................... ... 21

SECTION 4.50 – COURT RECORDS EX CLUDED FROM PUBLIC ACCESS ........ .24

SECTION 4.60 – REQUESTS TO PROHIBIT PUBLIC ACCESS TO

INFORMATION IN COURT RECO RDS OR TO OBTAIN ACCESS TO

RESTRICTED INFORMATION ................................................................................... 32Draft-Model Access Rules with Commentary

Page 2 of 44 Privacy and Access Task Force November 2006 

### Model Access Rules with Commentary

- Draft – Privacy and Access Task Force

WHEN ACCESSIBLE .................................................................................................... 37

SECTION 5.00 – WHEN COURT RECO RDS MAY BE ACCESSED ....................... 37

FEES ..........................................................................................................................

....... 38

SECTION 6.00 - FEES FOR ACCESS ..........................................................................38

SECTION 7.00 – OBLIGATION OF VENDORS PROVIDING INFORMATION

TECHNOLOGY SUPPORT TO A COURT TO MAINTAIN COURT RECORDS......39

OBLIGATION OF THE COURT TO INFORM AND EDUCATE ............................ 40

SECTION 8.00 – INFORMATION AND EDUCATION REGARDING ACCESS

RULES ...................................................................................................................... .......40

SECTION 8.10 – DISSEMINATION OF INFORMATION TO LITIGANTS

ABOUT ACCESS TO INFORMAT ION IN COURT RECORDS ................................ 40

SECTION 8.20 – DISSEMINATION OF INFORMATION TO THE PUBLIC

ABOUT ACCESSING COURT RECORDS ..................................................................42

SECTION 8.30 – EDUCATION OF JUDGES AND COURT PERSONNEL ABOUT

THE ACCESS RULES ...................................................................................................42

SECTION 8.40 – EDUCATION ABOUT PROCESS TO CHANGE INACCURATE

INFORMATION IN A COURT RECORD ....................................................................43

SECTION 8.50 – PROCEDURE TO CORRECT, EXPUNGE, OR UPDATE

INACCURATE INFORMATION ..................................................................................43Draft-Model Access Rules with Commentary

Page 3 of 44 Privacy and Access Task Force November 2006 

## Purpose

Section 1.00 - Purpose of these Rules

(a) The purpose of these rules is to provide a comprehensive framework for a policy on public access to court records. These ru les provide for access in a manner that:

(1) Maximizes accessibility to court records, (2) Supports the role of the judiciary, (3) Promotes governmental accountability, (4) Contributes to public safety, (5) Minimizes risk of injury to individuals, (6) Protects individual privacy rights and interests, (7) Protects proprietary business information, (8) Minimizes reluctance to use the court to resolve disputes, (9) Makes most effective use of c ourt and clerk of court staff, (10) Provides excellent cu stomer service, and (11) Does not unduly burden the ong oing business of the judiciary.

The rules are intended for 1) litigants, 2) those seeking access to court records, and 3) judges and court and clerk of court personnel responding to requests for access.

Task Force Commentary and Selected Text from CCJ/COSCA Guidelines for Public

Access to Court Records

The objective of these rules is to provide ma ximum public accessibility to court records, consistent with constitutional or other provisi ons of law and taking in to account public policy interests that are not always fully compatible with unrestricted access. Eleven significant public policy interests are identified. Un restricted access to certain info rmation in court records could

result in an unwarranted invasi on of personal privacy or unduly in crease the risk of injury to

individuals and businesses. Denial of access woul d compromise the judici ary’s role in society, inhibit accountability, and might endanger public safety.

These rules start from the presumption of ope n public access to cour t records. In some circumstances, however, the right to privacy may require that access to some records is restricted. The rules reflect the view that any restriction to access must be implemented in a manner narrowly tailored to serve the interests in open access. The premise underlying these rules is that court records are open and accessibl e to the public. Open access serves many public purposes. Open access supports the judiciary in fulf illing its role in our democratic form of government and in our society. Open access also promotes the accountability of the judiciary by readily allowing the public to monito r the performance of the judiciary.Draft-Model Access Rules with Commentary

Page 4 of 44 Privacy and Access Task Force November 2006 Section 1.00 (Commentary, cont.)

Other specific benefits of open c ourt records are further elaborated in the remaining subsections.

Subsection (a)(2) Supports the Role of the Judici ary. The role of the judiciary is to resolve disputes, between private parties or between an individual or enti ty and the government, according to a set of rules. Although the dispute is between two people or entities, or with the government, having the process and result open to th e public serves a societal interest in having a set of stable, predictable ru les governing behavior and conduct. The open nature of court proceedings furthers the goal of providing public education about the results in cases and the evidence supporting them. Another aspect of the court’s disp ute resolution function is establishing rights as between part ies in a dispute. The decision of the court stating what the rights and obligations of the parties are is as im portant to the public as to the litigants. The significance of this role is reflec ted in statutes and rules creating such things as judgment rolls and party indices with specific public accessibility.

Subsection (a)(3) Promotes Government Acco untability. Open court records provide for accountability in at least three majo r areas: 1) the operations of the judiciary, 2) the operations of other governmental agencies, and 3) the enfor cement of laws. Open court records allow the public to monitor the performance of the judi ciary and, thereby, hold it accountable. Public access to court records allows anyon e to review the proceedings and the decisions of the court, individually, across cases, and acro ss courts, to determine whether th e court is meeting its role of protecting the rule of law, and does so in a co st effective manner. Such access also promotes greater public trust and confiden ce in the judiciary. Openness also provides acc ountability for governmental agencies that are parties in court actions, or whose activit ies are being challenged in a court action. Finally, open court proceedings and open court records also demonstrate that laws are being enforced. This includes civil regulatory laws as well as criminal laws.

Subsection (a)(4) Contributes to Public Safety. Open public acce ss contributes to public safety and compliance with the law. Availability of information about court proceedings and outcomes allows people to become aware of individuals, circumstances or busines s propositions that may pose a threat to their persons or their property. Open public acce ss to information thus allows people to protect themselves. Examples of this are criminal convicti on information, protective order information, and judgments in non-criminal cases. At the same time however, an effort should be made to alert the public of the potentia lly serious problems that could be brought about by the reliance upon incomplete information from yet unresolved cases, where allegations have not been proven.

Public safety, physical and economic, is also enha nced to the extent open public access to court

records contributes to the account ability of corporations, busine sses and individuals. Court cases

are one source of information about unsafe products, improper bus iness practices or dangerous conditions. Knowing this information is readily av ailable to the public fro m court records is one

incentive for businesses a nd individuals to actDraft-Model Access Rules with Commentary

Page 5 of 44 Privacy and Access Task Force November 2006 Section 1.00 (Commentary, cont.)

appropriately. Open access to this information also allows indivi duals and businesses to better protect themselves from injury.

Subsection (a)(5) Minimizes Risk of Injury to Individuals. Other circumstances suggest unrestricted access is not always in the public interest. The intere st in personal safety can be served by restricting access to information that someone could use to injure someone else, physically, psychologically or economically. Exampl es of actual injury to individuals based on

information obtained from court records include: intimidation of, or physical violence towards, victims, witnesses, or jurors, repeated domestic violence, sexual assault, stalking, identity theft, and housing or employment discrimination. While this does not require tota l restriction of access to court records, it supports rest riction of access to certain information that would allow someone to identify and find a person to whom they intend harm. This is an especially serious problem in domestic violence cases where the abused pers on is seeking protecti on through the court.

Subsection (a)(6) Protects Indivi dual Privacy Rights and Intere sts. The countervailing public interest to open public access is the protection of personal privacy. The interest in privacy is protected by limiting public acce ss to certain kinds of information. The presumption of public

access is not absolute. Considerations identified regarding privacy interests include: a specific, legally protected privacy interest, the reasona bleness (personally and objectively) of the expectation of privacy, the seri ousness of the invasion of pr ivacy, and the legitimate public interest in disclosure. Appropria te respect for individual privacy also enhances public trust and confidence in the judiciary. It is also important to remember that, generally, at least some of the parties in a court case are not in court voluntarily, but rather ha ve been brought into court by plaintiffs or by the government. They have not co nsented to personal information related to the dispute being in the public domain. For those who ha ve violated the law or an agreement, civilly or criminally, an argument can be made that they have impliedly consente d to participation and disclosure by their actions. However, both civ il suits and criminal cases are filed based on allegations, so it cannot be presumed that i ndividuals who find themselves in court as a defendant in a case have acted improperly or wrongly as alleged by plaintiffs or by the

government.

For those who have not been charged with violat ion of the law, civilly or criminally, but are subject to protective actions in itiated by the government, such as those subject to involuntary commitments, guardianship or conservatorship proceedings, implied consent to participation and

disclosure could not be similarly argued.

Finally, at times a person who is not a party to the action may be mentione d in the court record. Care should be taken that the privacy rights and interests of such a ‘t hird’ person, such as a minor involved in child protective proceedings , is not unduly compromised by public access to the court record containing information about the person.

Subsection (a)(7) Protects Proprietary Business Information. Another type of information to which access may be restricted is that related to the operations of a business. There may be a compelling reason to protect trade secrets or other proprietary business information in a particular case. Allowing public ac cess to such information could bothDraft-Model Access Rules with Commentary

Page 6 of 44 Privacy and Access Task Force November 2006 Section 1.00 (Commentary, cont.)

thwart a legitimate business advantage and give a competitor an unfair business advantage. It also reduces the wi llingness of a business to use the courts to resolve disputes.

Subsection (a)(8) Minimizes Reluctance To Use The Court To Resolve Disputes. The public availability of information in the court record can also affect the decision as to whether to use the court to resolve disputes. A policy that permits unfettered public access might result in some individuals avoiding the resoluti on of a dispute through the court because they are unwilling to

have information become accessible to the public simply by virtue of it being in the court record.

This would diminish access to the courts and undermine public confiden ce in the judiciary. There may also be an unintended effect of en couraging use of altern ative dispute resolution mechanisms, which tend to be essentially privat e proceedings. If someone believes the courts are not available to help resolve their dispute, there is a risk they will resort to self-help, a response

the existence of the courts is intended to minimi ze because of the societal interest in the peaceful resolution of disputes.

Subsection (a)(9) Makes Most Effective Use of Court and Clerk of Court Staff. This

consideration relates to how access is provided rather than whether there is access. Staff time is required to maintain and provide public access to court records. If records are in electronic form, less staff time may be needed to provide public ac cess. However, there can be significant costs to

convert records to electronic form in the first place and to maintain them. There may also be added costs for court personnel need ed to provide appropriate secur ity for court databases and to prevent hackers from improperly accessing and a ltering court databases. These additional staff costs may at least partially offset any savings from improvements in workflow or from less use of staff time to respond to records requests. In providing public access th e court and clerk should be mindful of doing it in a way that makes most e ffective use of court and clerk of court staff. Use of staff may also be a relevant consider ation in identifying the method for limiting access under section 4.60(a). Note that the rule does not require a court to convert records to electronic form, nor to make electronic records available remotely.

The design of electronic databases used by the court is also relevant here. Court records management systems should be designed to improve public access to the c ourt record as well as to improve the productivity of th e court’s employees and judges a nd the clerk’s office. What is the added cost of providing both? The answer to this involves allocation of scarce resources as well as system design issues. If the public can help themselves to access, especially electronically, less staff time is needed to respond to requests for access. The best options would be to design a system to accommodate access restric tions to certain kinds of information without court staff involvement (see discussion in Commentary to Section 3.20).Draft-Model Access Rules with Commentary

Page 7 of 44 Privacy and Access Task Force November 2006 Section 1.00 (Commentary, cont.)

Subsection (a)(10) Provides Excellent Customer Service. An access ru le should also support excellent customer service while conserving co urt resources, particular court staff. Having information in electronic form offers more oppor tunities for easier, less costly access to anyone

interested in the information. Th is consideration relates to ho w access is provided rather than

whether there is access.

Subsection (a)(11) Does Not Unduly Burden Th e Ongoing Business Of The Judiciary. Finally, an access rule and its implementation should not unduly burden the court in delivering its fundamental service – resolution of disputes. This consideration relates to how access is provided rather than whether there is access. Depending on the manner of public access, unrestricted public access could impinge on the day-to-day operations of the court. This subsection relates more to requests for bulk access (see section 4.30 ) or for compiled information (see section 4.40) than to the day-to-day, one at a time requests (see section 1.00, subdivision (a)(9)). Limited public resources and high case volum e also suggest that courts s hould not add to their current information burden by collecting information not n eeded for immediate judicial decisions, even

if the collection of this inform ation facilitates subsequent us e of the collected information. Making information available in electronic fo rm, and making it remotely accessible, requires both staff and equipment resources. Courts re ceive a large volume of documents and other materials daily, and converting them to electronic form may be expensive. As is the case with all public institutions courts have limited resources to perform their work. The interest stated in this subsection attempts to recognize that access is not free, that there may be more than one approach to providing, or restricting access, a nd some approaches are less burdensome than

others.



## Who Has Access

Section 2.00 – Who Has Access under these Rules

Every member of the public will have the same acce ss to court records as pr ovided in these rules, subject to the provisions of section 4.30(b) and 4.40(c).

In the official performance of their duties, the following people or entities, because of their employment or relationship to th e court, shall not have their a ccess restricted under Sections 4.0 through 4.6:

(a) court or clerk of court employees; (b) people or entities, private or governmental, who assist the court in providing court services; (c) agencies whose access to court reco rds is defined by another statute, rule, order or policy, and (d) the parties to a ca se or their lawyers regarding access to the court record in their

case.Draft-Model Access Rules with Commentary

Page 8 of 44 Privacy and Access Task Force November 2006 Section 2.00 (Commentary)

Public Access to Court Records

The point of this section is to explicitly state that access is the same for the general public, the media, and the information industry. Access doe s not depend on who is seeking access, the reason they want the information or what they ar e doing with it. The section also indicates what groups of people are not subject to access restrictions under these rules.

### Draft-Model Access Rules with Commentary

Access to What

Page 9 of 44 Privacy and Access Task Force November 2006 

## Access to What

Section 3.00 – Definitions

Section 3.10 – Definition of Court Record

For purposes of these rules:

(a) “Court record” includes:

(1) Any document, information, or other thing that is collected, received, or maintained by a court or clerk of co urt in connection with a judicial proceeding;

(2) Any index, calendar, docket, register of actions, official record of the proceedings, order, decree, judgment, minute, and any information in a case management system created by or prepared by the court or clerk of

court that is related to a judicial proceeding; and

(3) Information maintained by the cour t or clerk of court pertaining to the

administration of the court or clerk of court office and not associated with any particular case.

(b) “Court record” does not include:

(1) Other non-court records maintained by the public official who also serves

as clerk of court.

(2) Information gathered, maintained or stored by a governmental agency or other entity to which the court has access but which is not part of the court record as defined in section 3.10(a)(1).

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

This section defines the c ourt record broadly. Three cat egories of information are identified. First are the documents, etc., that constitute what is classically called the case file. The second category is information that is created by the court, some of which becomes part of the court file , but some resides only in docum ents or databases that are not in a case file. The third category is info rmation that relates to the operation of the court, but not to a specific case or cases. Th e definition addresses th e content of a court record, not whether the information is accessibl e to the public. Limitations and exclusions to access are provided for in sections 4.50 and 4.60.

The rules are intended to apply to every cour t record, regardless of the manner in which it

### Draft-Model Access Rules with Commentary

Access to What

Page 10 of 44 Privacy and Access Task Force November 2006 Section 3.10 (Commentary, cont.)

was created, the form(s) in which it is stor ed, or other form(s) in which the information may exist (see section 4.00).

Subsection (a)(1): This definition is meant to be all inclusive of information that is provided to, or made available to, the court that relates to a judicial proceeding. The term “judicial proceeding” is used because there may not be a court case in every situation.

The definition is not limited to information “f iled” with the court or “made part of the court record” because some types of informati on the court needs to make a fully informed decision may not be “filed” or technically part of the court record. The language is, therefore, written to include information deliver ed to, or “lodged” with, the court, even if it is not “filed.” An example is a compla int accompanying a motion to waive the filing fee based on indigency. The definition is also intended to include exhibits offered in hearings or trials, even if not admitted into evidence. The definition includes all information used by a court to make its decisi on, even if an appellate court subsequently

rules that the information should not have b een considered or was not relevant to the judicial decision made. In order for a court to be held accountable fo r its decisions all of

the information that a court considered and wh ich formed the basis of the court’s decision must be accessible to the public . The language is intended to include within its scope materials that are submitted to the court, but upon which a court did not act because the

matter was withdrawn or the case was resolved or, settled, by the parties. Once relevant material has been submitted to the court, it does not become inaccessible because the court did not, in the end, act on the informa tion in the materials because the parties

resolved the issue wit hout a court decision.

Subsection (a)(2): The definiti on is written to cover any in formation that relates to a judicial proceeding generated by the c ourt itself, whether through the court administrator’s personnel or the clerk’s o ffice personnel. This definition applies to proceedings conducted by temporary judges or referees hearing cases in an official capacity. This includes two cat egories of information. One category includes documents, such as notices, minutes, orders and judgments , which become part of the court record. The second category includes information that is gathered, generated, or kept for the purpose of managing the court’s cases. This information may never be in a document; it may only exist as information in a field of a database such as a case management system, an automated register of actions, or an index of cases or parties.

Subsection (a)(3): The definiti on of court record includes so me information and records maintained by the court and clerk of court that is related to the management and

administration of the court or the clerk’s o ffice, as opposed to a specific case. Examples of this category of information include: internal court polic ies, memoranda and correspondence, court budget and fiscal r ecords, and other ro utinely produced administrative records, memos and reports , and meeting minutes. The Commentary to subsection 4.60(b) discusses restriction of acces s to drafts and work products related to

court administration or cler k’s office administration.

### Draft-Model Access Rules with Commentary

Access to What

Page 11 of 44 Privacy and Access Task Force November 2006 Section 3.10 (Commentary, cont.)

Subsection (b)(1): This subsection makes it cl ear that the rules apply only to information related to court judicial proceedings. The t ypes of information described are not court records, nor is the court responsible for thei r collection, maintenance, or accessibility. If

the official who also serves as clerk of court has responsibil ities for other information and records, for example records maintained as clerk and recorder, wh ich do not relate to specific judicial proceedings, these rules do not apply to these records. The laws and access policies of the agency responsible for gathering and maintaining the information govern access to such information.

Subsection (b)(2): The definition excludes info rmation gathered, maintained or stored by other agencies or entities that is not necessary to, or is not part of the basis of, a court’s decision or the judicial process. Access to this information should be governed by the laws and access policy of the agency collec ting and maintaining such information. The ability of a computer in a court or clerk’ s office to access the information because the computer uses shared software and databases should not, by itself, make the court records access rules applicable to the in formation. An example of this is information stored in an integrated criminal justice information system where all data is shared by law enforcement, the prosecutor, the court, de fense counsel, and probation and corrections departments. The use of a shared system can blur the distinctions between agency records and court records. Under this section, if the in formation is provided to the court as part of a case or judicial proceeding, the court’s acce ss rules then apply, re gardless of where the

information came from or the access rules of that agency. Conversely, if the information is not made part of the court record, the acc ess policy applicable to the agency collecting the data still applies even if the information is stored in a shared database.



### Section 3.20 – Definition of Public Access

“Public access” means that th e public may inspect and obtain a copy of the information in a court record as provided by Montana law.

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

This section defines “public access” very br oadly. The unrestricted language implies that

access is not conditioned on the reason access is requested or on prior permission being granted by the court. Access is defined to include the ability to obtain a copy of the information, not just inspect it. The sect ion does not address the form of the copy as there are numerous forms the copy could take , and more will probably become possible as technology continues to evolve.

At a minimum inspection of the court record can be done at the courthouse where the

record is maintained. It can also be done in any other manner determined by the court

that makes the most effective use of court sta ff, provides quality customer service and is

### Draft-Model Access Rules with Commentary

Access to What

Page 12 of 44 Privacy and Access Task Force November 2006 Section 3.20 (Commentary, cont.)

least disruptive to the operations of the court – that is, consis tent with the principles and interests specified in section 1.00. The inspec tion can be of the physical record or an

electronic version of the court record. Access may be over the counter, by fax, by regular mail, by e-mail or by courier. Th e section does not preclude the court from making inspection possible via electronic means or other sites, or remotely. It also permits a court to satisfy the request to in spect by providing a prin ted report, computer disk, tape or other storage medium containi ng the information requested from the court record. The issue of the cost, if any, must be paid before obtaining a copy is addressed in

section 6.0.

The section implies an equality of the abil ity to “inspect and obt ain a copy” across the public. Implementing this equality will require the court to address several sources of inequality of access. Some people have physical impairments that prevent them from using the form of access available to most of the public. The American s with Disabilities Act may require the court or cl erk to provide information in a form that is usable to someone with a disability. Another problem has to do with the existence of a ‘digital divide’ regarding access to information in el ectronic form. The court should provide equivalent access to those who do not have the necessary electronic equipment to obtain access. Finally, there is the issue of the form at of electronic information and whether it is equally accessible to all computer platforms and operating systems. The court should make electronic information equally available, regardless of the computer used to access the information (in other words, in a manner th at is hardware and so ftware independent).

Another aspect of access is the need to redact restricted information in documents before allowing access to the balance of the docum ent (see section 4.60 (a) and associated commentary). In some circumstances this may be quite costly. Lack of, or insufficient, resources may present the court with an awkward choice of de ciding between funding normal operations and funding activities rela ted to access to court records. As technology improves it is becoming easier to deve lop software that allows redaction of pieces of information in documents in elec tronic form based on “tags” (such as XML tags) accompanying the information. When soft ware to include such tags in documents becomes available and court systems acquire th e capability to use the tags, redaction will become more feasible, allowing the balance of a document to be accessible with little effort on the part of the court.



### Section 3.30 – Definition of Remote Access

“Remote access” means the ability to electroni cally search, inspect, or copy information

in a court record without the need to physically visit the co urt facility where the court

record is maintained.

### Draft-Model Access Rules with Commentary

Access to What

Page 13 of 44 Privacy and Access Task Force November 2006 Section 3.30 (Commentary )

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

The objective of defining the term “remote acces s” in Section 3.30 is to describe a means of access that is technology neutral. Th e term is used in section 4.20 regarding information that should be remotely accessible. The key elements are that: 1) the access is electronic, 2) the electronic form of the acc ess allows searching of records, as well as viewing and making an electroni c copy of the information, 3) a person is not required to

visit the courthouse to access th e record, and 4) no assistance of court or clerk of court staff is needed to gain ac cess (other than staff mainta ining the information technology systems). This definition provides a term that is independent of any particular technology or means of access, for example, the Internet or a dial-up system such as the federal

court’s PACER 1 system. Remote access may be accomplished electronically by any one or more of a number of existing technologies , including dedicated te rminal, kiosk, dial-in service, or Internet site. Attaching electronic copies of information to e-mails, and mailing or faxing copies of documents in response to a letter or phone request for

information would not constitute remote access under this definition.



### Section 3.40 – Definition of “In Electronic Form”

Information in a court record that is defined in Section 3.10 includes: (a) electronic representations of text or gr aphic documents; (b) an electronic image, including a video image, of a document, exhibit or other thing; (c ) data in the fields or files of an electronic database; or (d) an audio or vi deo recording, analog or digital, of an event or notes in an electronic file from which a transcript of an event can be prepared.

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

The breadth of the definition of “in electronic form” makes clear that the rule applies to

information that is available in any type of electronic form. Th e point of this section is to define what “in electronic form” means, not to define whether electronic information can

be accessed or how it is accessed.

1 PACER (Public Access to Court Electronic R ecords) is the automated case management information system used by the federal courts to provide information about court cases that can be accessed remotely by a subscriber.

### Draft-Model Access Rules with Commentary

Access to What

Page 14 of 44 Privacy and Access Task Force November 2006 Section 3.40 (Commentary, cont.)

Subsection (a): This subsection refers to electronic versions of textual documents (for example documents produced on a word processo r, or stored in some other text format such as PDF format), and pictures, charts , or other graphical representations of information (for example, graphics files, spreadsheet files, etc.).

Subsection (b): A document might be electroni cally available as an image of a paper document produced by scanning, or another im aging technique (but not filming or microfilming). This document can be viewed on a screen and it appears as a readable document, but it is not searchab le without the aid of OCR (op tical character recognition) applications that translate the image into a searchable text format. An electronic image may also be one produced of a document or other object through th e use of a digital camera, for example in a courtroom as part of an evidence presentation system.

Subsection (c): Montana courts are increasi ngly using case management systems, data

warehouses or similar tools to maintain data about cases and court activities. The rule applies equally to this information even though it is not produced or available in paper format unless a report containing the informati on is generated. This section, as well as subsection (a), would also cover files created for, and transmitted through, an electronic filing system for court documents.

Subsection (d): Evidence can be in the form of audio or videotapes of testimony or

events. In addition audio and video recordi ng, electronic recording and computer-aided transcription systems (CAT) us ing court reporters are increa singly being used to capture

the verbatim record of co urt hearings and trials.

### Draft-Model Access Rules with Commentary

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Page 15 of 44 Privacy and Access Task Force November 2006 

### Section 4.00 – Applicability of the Rules

These rules apply to all court r ecords, regardless of the physi cal form of the court record, the method of recording the information in th e court record or the method of storage of

the information in the court record.

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

The objective of this section is to make it clear that the rules apply to information in the court record regardless of the form in which the information was created or submitted to the court, the means of gathering, storing or presenting the information, or the form in

which it is maintained. Section 3.10 defines what is considered to be part of the court record. However, the materials that are contai ned in the court record come from a variety of sources. The materials are offered and kept in a variety of forms. Information in electronic form exists in a variety of fo rmats and databases and can be accessed by a variety of software programs. To support the general principle of open access, the application of the policy must be independe nt of technology, format and software and, instead, focus on the information itself.

Overview of Section 4.00 Provisions

Three categories of informati on accessibility are created in the following sections of the rules. The first reflects the general principle th at information in court records is generally presumed to be accessible (section 4.10). Second, there is a section that indicates what information should be accessible remotely (section 4.20). Following these provisions are

sections on bulk release of electronic inform ation (section 4.30) a nd release of compiled information (section 4.40). A fifth category id entifies information prohibited from public access because of overriding privacy or othe r interests (section 4.50). Finally, having

defined what information is accessible and not accessible, there is a section that indicates how to request the prohibition of access to information generally accessible, and how to gain access to information to which pub lic access is prohibited (section 4.60).



### Section 4.10 – Genera l Access Rule

(a) Information in the court record is acce ssible to the public ex cept as prohibited by section 4.50 or section 4.60(a).

(b) There shall be a publicly accessible indica tion of the existence of information in a

court record to which access has been prohibited, which indication shall not

disclose the content of th e information protected.

### Draft-Model Access Rules with Commentary

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Page 16 of 44 Privacy and Access Task Force November 2006 Section 4.10 (Cont.)

(c) A local court may not adopt a more restrictive access policy or otherwise restrict access beyond that provided for in these rules, nor provide greater access than that provided for in these rules.

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

Subsection (a) states the general premise that information in the court record will be publicly accessible unless access is specifica lly prohibited. There are two exceptions noted. One exception is information in the cour t record that is specifically excluded from public access by section 4.50. The second ex ception provides for those individual situations where the court orders a part of th e record to be restricted from access pursuant to the procedure set forth in section 4.60(a).

The provision does not require any particular le vel of access, nor does it require a court to provide access in any particular form, for ex ample, publishing court r ecords in electronic

form on a web site or dial-in database. (See section 4.20 on information that a court should make available remotely.)

The provision, by omission, reiterates the conc ept noted in the commentary to section 2.00 that access is not conditioned on proper use, nor is the burden on requestors to show they are entitled to access. Subsection (b) provides a way for the public to know that information exists even though public access to the information itself is prohibited. This allows a member of the public to request ac cess to the restricted record under section 4.60(b), which they would not know to do if th e existence of the re stricted information was not known. Making the existence of rest ricted information known enhances the accountability of the court. Hiding the ex istence of information not only reduces accountability, it also erodes public trust a nd confidence in the judiciary when the

existence of the information becomes known.

In addition to disclosing the existence of inform ation that is not available, there is also a value in indicating how much information is being withheld. For many redactions this could be as simple as using “placeholders,” such as gray boxes, when characters or numbers are redacted, or indica ting how many pages have been excluded if part or all of a document is not accessible. Providing this level of detail about the information contributes to the transparency and credibi lity of the restriction process and rules.

There are two situations where this policy pr esents a dilemma. One is where access is

restricted to an entire document and the ot her concerns a case wher e the entire file is ordered sealed. This section requires the exis tence of the sealed document or file to be public. The problem arises where the disclosi ng of the existence of a document or case involving a particular person, as opposed to some of the information in the court record, reveals the very information the restriction or der seeks to protect. One example would be

### Draft-Model Access Rules with Commentary

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Page 17 of 44 Privacy and Access Task Force November 2006 Section 4.10 (Commentary, cont.)

the title of a document in a register of actions which describes the t ype or nature of the

information to which access restrictions is being sought. These problems can be avoided, to some extent, by using a more generic desc ription in the caption of a document, using a pseudonym, or some other unique identifier instea d of the party's full or real name. This section requires disclosure of the existence of sealed information in the interest of a more open judicial record.

Section 4.30 (c) is provided for in the rules to promote consistency and predictability across courts; it also furthers equal access to courts and court records.



### Section 4.20 – Court Records In Electronic Form Presumptively Subject to Remote Access by the Public

The following information in court records should receive the highest priority for remote access by the public if available in electroni c form, unless public access is restricted pursuant to sections 4.50 or 4.60(a):

a. Litigant/party indexes to cases filed with the court;

b. Listings of new case filings, including the names of the parties;

c. Register of actions showing what docum ents have been filed in a case;

d. Calendars or dockets of court proc eedings, including the case number and caption, date and time of heari ng, and location of hearing;

e. Judgments, orders, or decrees in a case a nd liens affecting title to real property.

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

Several types of information in court record s have traditionally been given wider public distribution than merely making them publicly accessible at the courthouse. Task force members agreed that the types of informa tion listed in Section 4.20 should receive the highest priority for automation and remote access.

The summary or general nature of the information is such that there is little risk of harm

to an individual or unwarrant ed invasion of privacy or propr ietary business interests.

While not every court, or every automated sy stem, is capable of pr oviding this type of access, courts are encouraged to develop the capability to do so. The listing of information that should be made remotely av ailable in no way is intended to imply that

other information should not be made remo tely available. Some court’s automated systems may also make more information availa ble remotely to litigants and their lawyers than is available to the public, but this is outside the scope of these rules.

Making certain types of information remotely accessible allows the court to make cost

### Draft-Model Access Rules with Commentary

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Page 18 of 44 Privacy and Access Task Force November 2006 Section 4.20 (Commentary, cont.)

effective use of public resources provided fo r its operation. If the information is not available, someone requesting the information w ill have to call the court or come down to the courthouse and request the information. Publ ic resources will be consumed with court staff locating case files containi ng the record or information, providing it to the requestor, and returning the case file to the shelf. If the requestor can obtain the information remotely, without involvement of court staff, there will be less use of court resources.

In implementing this section a court should be mindful a bout what specific pieces of information are appropriately remotely accessibl e. Care should be taken that the release of information is consistent with all provisi ons of the access rules, especially regarding personal identification information. For exam ple, the information remotely accessible should not include information presumptivel y excluded from public access pursuant to section 4.50, prohibited from public access by court order pursuant to 4.60(a).

Subsection (e): One role of th e judiciary, in resolving disput es, is to state the respective rights, obligations and interests of the parties to the dispute. This declaration of rights, obligations and interests usually is in the form of a judgment or other type of final order. Judgments or final orders have often had greater public accessibi lity by a statutory requirement that they be recorded in a “j udgment roll” or some similar practice. One reason this is done is to simplify public a ccess by placing all such information in one place, rather than making someone step thr ough numerous individual case files to find them. Recognizing such practices, the policy sp ecifically encourages this information to be remotely accessible if in electronic form.

There are circumstances where information a bout charges and convictions in criminal cases can change over time, which could mean copies of such listings derived from court records can become inaccurate unless updated. Th ese circumstances suggest that there be

a disclaimer associated with such informati on, and that education about these possibilities be provided to litigants and the public.

### Draft-Model Access Rules with Commentary

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Page 19 of 44 Privacy and Access Task Force November 2006 

### Section 4.30 – Requests for Bulk Distribution of Court Records

Bulk distribution is defined as the distributi on of all, or a significant subset, of the information in court records, as is and without modification or compilation.

(a) Bulk distribution of information in the court record is permitted for court records that are publicly accessible under secti on 4.10 and not prohibited by state law.

(b) A request for bulk distribution of info rmation not publicly accessible can be made

to the court where the identification of specific individuals is ancillary to the purpose of the inquiry. Prior to the rel ease of information pursuant to this subsection the requestor must comply w ith the provisions of section 4.40(c).

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

This section addresses request s for large volumes of information in court records, as opposed to requesting information from a par ticular case or refo rmulated information from several cases (see section 4.40). The section authorizes bulk distribution for information that is publicly accessible. It also sets out a method of requesting bulk

distribution of information to whic h public access is restricted.

There are advantages to allowing bulk access to court records. Allowing the public to

obtain information from court records from a third party may reduce the number of requests to the court for the records. Fewe r requests mean less court staff resources devoted to answering inquiries and requests. However, there are costs associated with making the records available. There may also be technology, as well as cost, issues in providing bulk distribution of information. Fo r example, a court’s systems may not be able to identify and separate publicly accessi ble information from restricted information in creating a copy of information for bulk distribution. Permitting bulk distribution of information in this circumstance assumes pr oviding the data will not interfere with the normal operations of the court. There is also the ‘cost’ of reduced public confidence in the judiciary from the existence of inaccura te, stale or incorrectly linked information available through third parties but derived from court records.

In allowing bulk data to be disseminated a court should be mindful not to gather

information that it does not need to fulfill its judicial role, even if those requesting bulk information are interested in obtaining this information.

Subsection (a). Bulk transfer is allowed for information that is publicly accessible under these rules, however, task force members noted that § 2-6-109, MCA prohibits public agencies from distributing or selling for us e as a mailing list any list of persons without first securing the permission of those on the list ; and that a list of persons prepared by the agency may not be used as a mailing list excep t by the agency or another agency without first securing the permission of those on the list . There is no constituti onal or other basis

### Draft-Model Access Rules with Commentary

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Page 20 of 44 Privacy and Access Task Force November 2006 Section 4.30 (Commentary, cont.)

for providing greater access to bulk requestors than to the public generally, and this section implies there should be no less access. Consistent with section 3.20, public access, including bulk access, is not dependent upon the reason the access is sought or the proposed use of the data. Court informati on provided through bulk distribution can be combined with information from other sources. Information from court records may be linked with other information and may be used for purposes that are unrelated to why the information was provided to the court in the first place. It is significant to note that transferring information in the court record into databases that are then beyond the

court’s control creates the ve ry real likelihood that the in formation will, over time, become incomplete, inaccurate, stale or cont ain information that ha s been removed from the court’s records. Keeping information distri buted in bulk current may require the court to provide “refreshed” information on a freque nt, regular and period ic basis. This may raise issues of availability of court resources to do this . Although creating liability or penalties on the third party information pr ovider might reduce the risk of stale or incorrect information being distributed, meeti ng this standard still requires the court to provide updated and new information on a frequent basis.

A particular problem with bul k distribution of criminal c onviction information has to do with expungement policies. If the intent of an expungement po licy is to “erase” a conviction, the public policy may be impossible to implement if the information is already in another database as a result of a bulk transfer of the information. An approach

needs to be devised that accommodates e xpungement and bulk distribution. Potential

mass access to electronic court information fu rther highlights the question of the accuracy

of the court’s records. This is particularly important for databases created by court or clerk of court employees. The potential for bulk distribution of the information in a court database will require courts and clerks to be even more vigilant about both the accuracy

of their databases and the timeliness of entering information into them.

### Draft-Model Access Rules with Commentary

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Page 21 of 44 Privacy and Access Task Force November 2006 

### Section 4.40 – Access to Compiled Information from Court Records

(a) Compiled information is de fined as information that is derived from the selection, aggregation or reformulation by the court of some of the information from more

than one individual court record.

(b) Any member of the public may request compiled information that consists solely of information that is publicly accessible and that is not already available pursuant to section 4.20 or in an existing report . The court shall compile and provide the

information if it determines that the resources are available to compile the information. The court may delegate to its staff or the clerk of court the authority

to make the initial determination as to whether to provide compiled information.

(c) Compiled information that includes in formation to which public access has been restricted may be requested by any member of the public pursuant to Section 4.6.

The request shall:

1) identify what information is sought, 2) explain provisions for the secure prot ection of any information requested to which public access is rest ricted or prohibited. 3) if the request is granted, the court may require the requestor to sign a

declaration that:

i. The data will not be sold or ot herwise distributed, directly or indirectly, to third parties, ex cept for journalistic purposes,

ii. The information will not be used dire ctly or indirectly to sell a product

or service to an indivi dual or the general public , except for journalistic purposes, and/ or

iii. The court may make such additional orders as may be needed to protect information to which access has been restricted or prohibited.

### Draft-Model Access Rules with Commentary

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Page 22 of 44 Privacy and Access Task Force November 2006 Section 4.40

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

This section authorizes access to compiled information. The section describes how the compiled information is requested, the requi rements for obtaining compiled information, and possible limitations on using the information.

The primary interests served by release of compiled information are supporting the role of the judiciary, promoting the accountability of the judiciary, and providing public education regarding the judiciary. Compiled data allows analysis and comparison of court decisions across cases, across judges and across courts. This information can also educate the public about the judicial pr ocess. It can provide guidance to individuals in the conduct of their everyday life and busin ess. Although some judges may have legitimate concerns about misuse of compiled data, for example in comparing the decisions of judges, such an analysis is one approach to monitori ng the performance of the judiciary.

Compiled data also allows the study of the effectiveness of the judiciary and the laws enforced in courts. For example, the studies of delay reduction lead ing to improved case management and faster case processing times were based on analysis of compiled data

from thousands of cases in over a hundred courts across the country. In allowing compiled data to be disseminated a court shoul d be mindful not to gather information that it does not need to fulfill its judicial role, even if those requesting compiled information are interested in obtaining this information.

Subsection (a) provides a defi nition of compiled informati on. Compiled information is different from case-by-case access because it involves information from more than one case. Compiled information is different from bulk access in that it involves only some of

the information from some cases and the information has been reformulated or aggregated; it is not just a c opy of all the information in th e court’s records. Essentially compiled information involves the creation of a new court record. In order to provide compiled information a court generally must write a computer program to select the specific cases or information sought in the re quest, or otherwise use court resources to identify, gather, and copy the information.

Generating compiled data may require cour t resources and generating the compiled information may compete with the normal operations of the court for resources, which may be a reason for the court not to compile th e information. It may be less costly for the court and less of an impact on the court t o, instead, provide bulk distribution of the requested information pursuant to section 4.30, and let the requestor, rather than the

### Draft-Model Access Rules with Commentary

Access to What

Page 23 of 44 Privacy and Access Task Force November 2006 Section 4.40 (Commentary, cont.)

court, compile the information.

Subsection (b) addresses requests for informati on that is publicly available. Since public resources are used in responding to the reque st, the question for the court is whether responding meets criteria estab lished by the court for providing such information, and

whether the court will choos e to expend available res ources on the request.

The reference in section 4.40(b) to section 4.20 and existing reports is intended to limit the section’s application to requests for co mpiled data that are not already routinely prepared and made public. Party name indices, or a screen that reports the results of a

name search of either civil or criminal cas es, are examples of compiled information that already exist.

Section 4.40(c) addresses requests for informa tion that is not public ly accessible. Since the information is not publicly accessible, the section provides for protections of the

restricted information.

The exception for “journalistic purposes” in subdivisions 4.40(c) is included as a recognition that what journalism sells is in formation, and prohibiting a journalist from selling the information may defeat the pur pose of providing the information to the journalist in the first place.

Subdivision 4.40(c) further identifies possi ble provisions for preventing improper

disclosure of restricted or prohibited information. A state or individual co urt’s policy might also consider a requirement of a nondi sclosure agreement that includes injunctive relief and indemnities for improper disclosure. In order to get a court order releasing the information the appropriate nondisclosure ag reement must be signed by the requestor.

The enforcement of restrictions on the use or dissemination of information provided presents additional issues that the courts must address. One option is for courts to refuse to continue supplying compiled da ta to a certain organization, or on a certain subject, if abuses occur. Another option is to create, or strengthen, penalties for the release of

information to which access is re stricted under these rules.

The distribution of bot h publicly accessible a nd protected data also presents ancillary issues. Analysis of the data without a full understanding of the meaning of the data elements or codes used, or without a full understanding the limitati ons of the data, can

result in conclusions not subs tantiated by the data. To some extent this can be addressed by explanatory information provided with th e transmittal of the compiled information.

### Draft-Model Access Rules with Commentary

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Page 24 of 44 Privacy and Access Task Force November 2006 Section 4.40 (Commentary, cont.)

Another concern arises with re lease of compiled data in el ectronic form. This is the

result of the nature of electron ic records, which are an atypi cal subset of data from all

court records. As electronic versions of information become more available, skewing

arises between what is available in electr onic form, versus paper form. Compiled data from the electronic record may, therefore, not be representative of all cases. The fact that very little information prior to a certain date is available in electronic form could also cause significant skewin g. If historical records are not scanned or otherwise converted into electronic form, the electronic records will only be recent cases or newer information in older cases. There are no obvious ways to avoid this problem, assuming the cost of producing electronic versions of all existing records is prohibitive.

Finally, an extracted set of information is a snapshot of the information, whereas the

database from which the information is ex tracted is dynamic, constantly changing and growing.



### Section 4.50 – Court Records Excluded from Public Access

The following information in a court record is not accessible to the public:

(a) Information that is not to be accessibl e to the public pursuant to state law; and

(b) Information that is not to be accessibl e to the public pursuant to federal law.

(c) The following information is not av ailable without leave of the court:

(1) Complete social security numbers; (2) Complete financial account numbers; (3) Full names of minor children, unless state law requires a child’s name to be accessible to the public; (4) Full birth dates of any person.

(d) It is the responsibility of the filing party to comply with these rules to protect private information.

### Draft-Model Access Rules with Commentary

Access to What

Page 25 of 44 Privacy and Access Task Force November 2006 Section 4.50 (Commentary)

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

The objective of this section is to identify those categories of information to which public access will be prohibited. The concept of th e section is that for certain types of information an existing statute, rule or cas e law expresses a policy determination, made by the Legislature or the j udiciary, that the presumpti on of public access has been overcome by an individual’s right to privac y, and that the prohibition of public access applies on a categorical, as oppos ed to a case-by-case, basis.

The section suggests two possibl e sources of restrictions on access to information. The first is state law. The following commentary provides several lists of categories that are currently found in state statute, rule or case law. The s econd source is federal law, although there are few, if any, such limitations . The inclusion of the various federal laws in the Commentary that do restrict the distribution of some information, but have not been found to apply to th e distribution of court records , is intended to provide

court administrators with a c onvenient resource to ensure th at administrators have an accurate understanding of those federal laws so misapprehension of these provisions will

not be an obstacle to the efficient an d appropriate release of court records.

Subsection (a) - State law: Information that is not accessi ble to the public pursuant to state law generally falls into two categories. First are case types where the records of the entire court proceedings are pres umptively sealed. These are:

1. Child Abuse and Neglect Proceedings and Proceedings Brought to Terminate Parental Rights Based Upon Abuse or Neglect of the Child

. All court records pertaining to actions taken under Title 41, Chapter 3 ar e not open for public inspection unless the court “finds disclosure to be necessary for th e fair resolution of the issue before it.” § 41- 3-205 (2), MCA;

2. Involuntary Commitment Proceedings pursuant to Title 53, part 21, Mental

Illness. Court records in these matters must be sealed five days prior to release of respondent and only opened for “good cause shown.” § 53-21-103, MCA.

3. Minor’s names . State law requires the disclosure of a minor’s iden tity in some circumstances. Disclosure may be required pur suant to a specific statutory mandate or pursuant to a statutory provision applicable to both adults an d minors where disclosure is required and no exception for the disclosure of a minor’s identity has been established.
Section 4.50 (Commentary)

### Draft-Model Access Rules with Commentary

Access to What

Page 26 of 44 Privacy and Access Task Force November 2006 Examples of such provisions ar e the traffic regulation laws. See generally Title 61, Chapter 8, MCA. In those situations where st ate law does not require the disclosure of minor’s names, the task force supports the use of fictitious names to refer to minors

whose names would otherwise be included in court records accessibl e to the public, such as victims or witnesses. We agree that the use of initials to accomplish this purpose, given Montana’s modest population, does not accord the privacy warranted in these

situations.

4. Formal Youth Court Records . These records are physic ally sealed on the youth’s 18th birthday, or, in cases where “jurisdicti on of the court or any agency is extended beyond the youth’s 18th birthday, th e records” are sealed when the extended jurisdiction has ended. § 41-5-216 (1), MCA. Prio r to this time, these records are open to public inspection, except for the “s ocial, medical and psychological records, youth assessment materials, predispositional studies and supervision records of probationer” which may be accessed only by t hose designated in § 41-5-215 (2), MCA

However, medical records, fingerprint s, DNA records, photographs, youth traffic records, or “records in any case in which th e youth did not fulfill all requirements of the court’s judgment or disposition” as well as records identified in § 42-3-203, MCA, and § 45-5-624 (7), MCA are exempt from thes e sealing provisions. § 41-5-216 (4), MCA;

5. Informal Youth Court Records . Informal youth court records must also be physically sealed on the youth’s 18th birthday, or, if jurisdic tion has been extended, they must be sealed when the jurisdicti on has ended. § 41-5-216 (7), MCA. However, these youth records may only be inspected by youth court personnel prior to the youth’s 18th birthday, and only when there is a new offense;

6. Conciliation Court Proceedings . All district court hear ings or conferences under this chapter shall be clos ed unless opened to inspec tion by parties or counsel upon judicial order. § 40-3-116, MCA.

7. Parentage Proceedings . All hearings or trials held under Title 40, part 6 must be held in closed court without admittance of any person other than those necessary to the

action. All records other than the final judgment are only subject to inspection by

consent of court and all inte rested persons or in exceptional cases, only upon an order “for good cause shown.” § 40-6-120, MCA;

4.50 (Commentary, cont)

### Draft-Model Access Rules with Commentary

Access to What

Page 27 of 44 Privacy and Access Task Force November 2006 8. Adoption Proceedings . All papers and records con cerning adoption “must be kept as a permanent record of the court and must be withheld fr om inspection,” and may only be distributed pursuant to a court order wh en good cause is shown, pursuant to the state statutory provisions regarding the collection of vital statisti cs or for purposes of child support enforcement and other narrow circumst ances provided within Title 42, Chapter 6, part 1. § 42-6-101, MCA;

9. Proceedings Regarding the Abuse or Negl ect of Elderly Persons and Persons with Developmental Disabilities . All actions presumed confiden tial and not released to public unless by court order or acti on of law. § 52-3-813, MCA;

10. Proceedings Under Parent al Notice of Abortion Act . This statute has been enjoined from enforcement by the First Judici al District Court of Montana. A minor petitioning to judicially bypass parental notification must be provided the option of using a pseudonym or initials and a ll documents related to the pe tition are confidential and are not available to the public. § 50-20-212(3), MCA;

11. Guardianship and Conservatorship Proceedings . Such proceedings must be closed if requested by the pers on alleged to be incapacitated or his or her counsel. § 72- 5-315 (4), MCA;

12. Grand Jury Proceedings . Courts “shall order a hearing on matters affecting a grand jury proceeding to be closed.” § 46-11-307, MCA. Disclosure of these proceedings is limited and generally may not be made to the public unless authorized by the district court. § 46-11-317, MCA;

13. Investigative Subpoena Proceedings . These proceedings are subject to the same secrecy and disclosure provisions as grand jury proceedings. § 46-4-304 (2), MCA;

14. Dissolution of Marriage, Crim inal Conversation or Seduction . Courts are authorized to exclude everyone from the cour troom except the officers of the court, the parties, their witnesses, and counsel for the tria l of any issue of fact in these proceedings. § 3-1-313 (2), MCA;

15. Supervision Proceedings by Insurance Commissioner . All records of the proceedings of actions taken under § 33-2-1321 and § 33-2-1322 are to be confidential,

unless the district court orders otherwise. § 33-2-1323, MCA.

4.50 (Commentary, cont.)

The Second category is information contained in court records that are not sealed, which

### Draft-Model Access Rules with Commentary

Access to What

Page 28 of 44 Privacy and Access Task Force November 2006 state law recognizes as sufficiently private to prohibit public access:

1. The address, telephone number, or place of employment of a victim of a criminal offense or a member of the victim’s family if the victim requests confidentiality, unless

this information “is of the location of the crime scene” or disclosure of this information “is required by law, is necessary for law enforcement purposes, or is authorized by a district count upon a showing of goo d cause.” § 44-5-311 (1), MCA;

2. All information identifying the victim of certain sexual crimes, unless that

information “is of the location of the crime scen e” or the disclosure of this information “is required by law, is necessary for law enforcement purposes, or is authorized by a district count upon a showing of good cause.” § 44-5-311 (3), MCA. These crimes are sexual assault, § 45-5-502, , sexual inte rcourse without consent, § 45-5-503, MCA, indecent exposure, § 45-5-504, MCA, and incest, § 45-5-507, MCA;

3. A defendant’s DNA information disclose d during a criminal proceeding. §§ 44-6- 106, 108, MCA;

4. Videotapes that are part of the record in cases involving sexual offenses. Videotapes “which are part of the court reco rd are subject to a pr otective order of the court for the purpose of prot ecting the privacy of the vi ctim.” § 46-15-403, MCA;

5. Pre-sentence investigation repor ts, pursuant to § 46-18-113, MCA;

6. Notice by prosecutor of other crimes, wrongs or acts. Notice must be filed and sealed until the time of trial or until a plea of guilty or nolo contendere is entered by the defendant. § 46-13-109 (3), MCA;

7. Confidential criminal justice informati on. Dissemination of c onfidential criminal justice information is restricted to criminal justice agencies, to those authorized by law to receive it, and to those aut horized by court order upon a wr itten finding that the demands of individual privacy do not clearly exceed the merits of public disclosure. § 44-5-303, MCA;

8. Will filed with court. A will filed wi th the court must be sealed and kept confidential during the testator’s lifetime. § 72-2-535, MCA;

4.50 (Commentary, cont.)

9. Writs of attachment. The fact of the fili ng of the complaint or the issuing of such attachment cannot be disclosed to the public un til after the filing of re turn of service of

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Page 29 of 44 Privacy and Access Task Force November 2006 attachment. § 27-18-111, MCA;

10. Medical information provided for marri age license. All medical certificates, laboratory statements and reports and inform ation provided pursuant to 40-1-203 through 40-1-209 are confidential and may not be disc losed to anyone other than state or local health officials. § 40-1-208, MCA;

11. Confidential information in certificate of marriage or dissolu tion of marriage. Disclosure of confidential information in certificate of marriage or dissolution of marriage for statistical purposes is prohibited unless disclosure is specifically authorized by law for statistical or research purposes or unless ordered by a court. § 50-15-121 (6), MCA;

12. Confidential information in birth r ecords. Disclosure of “confidential

information” in birth records for medical or he alth use is prohibited unless disclosure is specifically authorized by law for statistical or research pu rposes or unless ordered by a court. § 50-15-121 (6), MCA.

Subsection (b) Federal Law: There are several types of information that are commonly, if incorrectly , considered to be protected from pu blic disclosure by federal law.

Although the laws or regulations may prohib it a federal agency, federal employees, or certain other specifically designated part ies from disclosing certain information, the prohibitions generally do not extend to disclosure by state courts where the information has become a part of the court record. Parties should take note that these federal laws or regulations may apply to them when they introduce restricted information onto the court records, which may require the in dividuals to request th e court to restrict access under sections 4.50 or 4.60(a). Each category is discussed below.

Social Security Numbers. Although there may be restrictions on federal agencies disclosing Social Security Numbers (SSNs), they do not apply to state or local agencies

such as courts . One provision of the Social Security Acts does bar disclosure by state and local governments of SSNs collected pursu ant to any law enacted on or after October 1, 1990. 42 U.S.C. § 405(c)(2)(C)(vii)(I). Assu ming the section is applicable to state courts (there is some question about this), it would only apply to la ws authorizing courts to collect SSNs that were adopted after this date. One possible example of this may be the law passed in the mid 1990s to facilitate child support collection that requires inclusion of
4.50 (Commentary, cont.)

SSNs in orders granting disso lution of marriage, estab lishing child support or determining paternity. 42 U.S.C. § 405(c)(2 )(C)(ii). There does not appear to be any consensus as to whether the non-disclosure pr ovision applies to, or is superseded by, the

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Page 30 of 44 Privacy and Access Task Force November 2006 newer collection requirement.

Federal income or business tax returns. Federa l law prohibits disclosu re of tax returns by federal agencies or employees, but the prohibition does not extend to disclosure by

others.

Educational information protected by fede ral law. FERPA protects information about students receiving federal aid from disclosure by a university or public school system, but

it does not address disclosure of such inform ation in a court record. 20 U.S.C. § 1232 g.

Health and medical information. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) and regulations adopted pursuant to it limit disclosure of certain health related information about people by certain healthcare entities. 42 U.S.C. § 1320d; 45

C.F.R. Part 160 and 164. Whether the limitation extends to state c ourt records is not clear, however, state courts are not included within the definition of health care entities that are covered by HIPAA. There are also fe deral restrictions rega rding information in alcohol and drug abuse patient records and requiring confid entiality of information acquired by drug court programs. 42 U.S.C. § 290 dd - 2.

Criminal History Information. There are federa l regulations generally restricting the use of criminal history information contained in criminal records repositories maintained by executive branch agencies, particularly non- conviction information, to criminal justice purposes. The provisions do not extend to info rmation once it becomes part of a court record in a case; nor do they extend to c ourt records containing criminal conviction

information.

Americans with Disabilities Act. Federal regulations implementing the Americans with Disabilities Act provides th at employers must segregat e and keep confidential all information regarding medical examinations of employees required by the employer that are job-related and consistent with busine ss necessity. 42 U.S.C. § 12112, 29 C.F.R. § 1630.14 (c)(1). Thus, to the extent that pe rsonnel records of court employees are identified as court records under these rules, federal law would prohibi t the distri bution of those records to the public.

Research Involving Human Subjects. There are federal regulations establishing practices and, in certain circumstances, prohibiting di sclosure of certain personal identifier information gathered in the course of federa lly funded research on human subjects. 28
4.50 (Commentary, cont.)

C.F.R. Part 46 and 45 C.F.R. section 46. This does not apply to information gathered by a state court in the normal course of judicial business, but it might apply to individuals

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Page 31 of 44 Privacy and Access Task Force November 2006 requesting information from court records fo r research purposes under section 4.30 (bulk access) or section 4.40 (compiled access). 28 C.F.R. § 46.101 (b)(4).

Subsection (c) Finally, the task force determin ed that there are few if any circumstances where merits of public disclosure of social security numbers, financial account numbers,

minor children and birth dates w ould outweigh the privacy interests implicated. Thus, in light of the absence of specific state or fe deral protection of such information when

contained in court records that are otherwise accessible to the public, the task force feels it is necessary to include this pr otection in these court rules.

There are a variety of ways to comply with th is rule. The task force believes that the following are the most effective ways to accomplish this purpose:

1. Social security numbers . The task force recommends the disclosure of no more than the last four digits of the social secu rity number. However, as the task force does not have the specific expertise to determine the implications of the publication of just partial social security numbers upon the individual’s privacy interests, this recommendation is provisional. The task force would recommend to the Court that during the public comment period, a special invi tation be made to members of the public who have this specific expertis e so the implications of even partial disclosure of social security numbers can be thoroughly explored.

2. Financial account numbers . The task force supports the disclosure of only the last four digits of any such account. As with the prior recommendation, however, this recommendation is provisional, as the task fo rce does not have the specific expertise to determine the implications of the publica tion of partial financ ial account numbers upon the individual’s the privacy interests. The task force would recommend to the Court that during the public comment period, a special invi tation be made to members of the public who have this specific expertis e so the implications of even partial disclosure of financial

account numbers can be t horoughly explored.

3. Minor’s names . In those situations where st ate law does not otherwise require the disclosure of minor’s names, the task force supports the use of fictitious names to

refer to children victims or w itnesses in court records accessi ble to the public. We agree that the use of initials to accomplish this purpose does not, given Montana’s modest population, accord the privacy warra nted in these situations.

4. Full birth dates of any person . The task force supports the disclosure of only the birth year, and not the month or date of birth.

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Page 33 of 44 Privacy and Access Task Force November 2006 

### Section 4.60 - Requests to Prohibit Publ ic Access to Information in Court

Records Or to Obtain Acce ss to Restricted Information

(a) A motion or request to prohibit public access to information in a court record may be made by any party to a case, the indi vidual about whom information is present in the court record, the clerk of court , or on the court's own motion. The court

must decide whether there are su fficient grounds to prohibit access by determining whether the demand of indivi dual privacy clearly exceeds the merits of public disclosure.

The court should require that a party file a motion to protect th e information, with the information to be protected in a seal ed envelope lodged, but not filed, with the court. If the court grants the motion or request, the information will be filed

under seal. If the court deni es the request, the party will have the option to file the information with knowledge that it will be accessible to the public.

(b) In restricting access the c ourt will use the least restrict ive means that will achieve the purposes of the access rules and the needs of the requestor.

A request to obtain access to informati on in a court record to which access is prohibited under section 4.50 or 4.60(a) of these rules may be made by any member of the public or on the court' s own motion upon notice as provided in subsection 4.60(c). The court must decide whether there are sufficient grounds to prohibit access by determining whether th e demand of individual privacy clearly exceeds the merits of public disclosure. When the request is made for bulk or compiled information to which public access has been prohibited under Section 4.50 and 4.60 (a) of these rules, the court s hould consider the actions provided in section 4.40 (c) when making such a determination.

(c) The following is the process for maki ng requests described in 4.50(a) and 4.50 (b) where that process is not pr ovided in statute or case la w. The request shall be made by a written motion to the court. The requestor will give notice to all parties in the case except as prohibited by la w. The court may require notice to be given by the requestor or another party to any individuals or entities identified in the information that is the subject of the request. When the request is for access to information to which access was previ ously prohibited under section 4.60(a), the court will provide notice to the indivi dual or entity that requested that access be prohibited either itself or by di recting a party to give the notice.

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Page 34 of 44 Privacy and Access Task Force November 2006 4.60 (Commentary)

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

This section lays out the ba sic considerations and proce sses for prohibiting access to otherwise publicly available information (oft en referred to as seal ing), or opening access to restricted information (whe ther restricted under section 4.50 or section 4.60(a)). The language incorporates the presumption of ope nness, and the need for sufficient grounds to overcome the presumption. The section al so specifies the mechanism for making the request and directs the court to use the least restrictive approach possible when restricting public access. The section reflects that the c onsideration must be made by the court on a case-by-case basis.

Subsection (a) allows anyone who is identified in the court record to request prohibition of public access. This specifi cation is quite broad, includ ing a witness in a case or someone about whom personally identifiable in formation is present in the court record, but who is not a party to the action. While the reach of the rule is quite broad, this is required to meet the intent of subsection 1.00 (a)(6) regarding prot ection of individual privacy rights and interests, not just the privacy rights and in terests of parties to a case.

Protection is available for someone who is refe rred to in the case, but does not have the options or protections a part y to the case would have.

Subsection (a) provides only for prohibiting access to information, not prohibiting access

to the existence of the information. Sec tion 4.10(b) specifically provides that the

existence of information to which access is prohibited will be pub licly accessible. Subsection (a) does not have a ny restrictions regarding when the request can be made, implying it can be done at any time.

This subsection provides that it is the c ourt that will decide whether access will be prohibited. Even if all parties agree th at public access to information should be prohibited, this is not binding on the court, which must still make the decision based on the applicable law.

Subsection (a) also addresses what access is permitted between the time a request to prohibit access is made and the court rules on th e request. This is particularly critical if the request is made simultaneously with the filing of the information. It is also more critical where the parties represent them selves and are unaware of appropriate procedures. A court should require that a pa rty file a motion to pr ohibit access with the information to be protected in a sealed e nvelope being lodged, but not filed, with the court. If the court grants the request, the in formation can be filed with prohibition to

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Page 35 of 44 Privacy and Access Task Force November 2006 4.60 (Commentary, cont.)

access. If the request is denied, the party ha s the option of filing the information without prohibition of access, or not fili ng it. In order to avoid the misuse of such a provision to achieve at least temporary restri ction, a court should establis h procedures th at provide for prompt consideration of a request to prohibit access.

The last paragraph to subsection (a) requires th e court to seek an approach that minimizes

the amount of information that cannot be accessed, as opposed to an "all or nothing" approach. This is directed at the questi on of what to do about a document or other

material in the court record that contains some information to which access should be prohibited along with other information th at remains publicly accessible. The issue becomes one of whether it is technically pos sible to redact some information from a

document and to allow the balance of the doc ument to be publicly available. Less restrictive methods include redaction of pieces of information in the record, sealing of only certain pages of a document, as opposed to the entire document, or sealing of a document, but not the entire file. As noted previously (see commentary under section 3.20) newer technologies permit tagging of inform ation in an electronic records in a way that readily allows electronic redaction of pieces of information in an electronic document, and courts are encouraged to obtain this capability when acquiring new systems. As discussed in the commentary to section 4.10, other approaches to restricting access to names would preferab ly include using pseudonyms or other unique identifier

rather than a full or real name.

In addition to whether it is technically possibl e, there may be an issue of whether it is feasible to redact information in a record, a nd whether the court or clerk has the resources to do so. The work needed to exhaustively review a large file or document to find information to be redacted may be prohibitive, such that access to the whole file or document would be restricted, ra ther than attempting redaction.

There is information that may be contained in court records which ha s not been protected in state statute, but may raise significant pr ivacy interests that individuals may seek to

protect pursuant to this section.

1. Medical records; State v. Nelson , (1997) 283 Mont. 231, 242, 941 P.2d 441, 448. These records may include descriptions or analysis of a person’s DNA or genetic material, biometric identifiers, psychol ogical evaluations, examination, diagnosis, evaluation or treatment records and photographs . In addition to court files in connection with a specific case, such information may also be found jury questionnaires (see discussion below);

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Page 36 of 44 Privacy and Access Task Force November 2006 4.60 (Commentary, cont.)

2. Identity of a witness where the physical safety of the w itness is in actual jeopardy, and no less restrictive means of protecting the right to privacy are available. Great Falls

Tribune v. District Court , (1989) 238 Mont. 310, 319, 777 P.2d 345, 350. Other individuals who may similarly be in actual jeopardy could in clude victims in stalking or domestic violence cases, informants or potential or sworn jurors in a criminal case. Such identifying information may include telephone nu mber, address, email address or place of employment;

3. Financial information that provides identifying account num bers on specific assets, liabilities, accounts, or credit cards. Such informati on may be found within jury questionnaires, applications file d to request the waiver of cour t fees or the appointment of counsel at public expense, and child support enforcement documents;

4. Full addresses of children who are victims or witnesses;

5. Photographs and other admitted exhibits depicting violence, death, or children subjected to abuse;

6. State income or business tax returns;

7. Personnel records, Montana Human Rights Bureau v. City of Billings , (1982) 199 Mont 434, 443, 649 P.2d 1283, 1288;

8. Search warrants and affidavits prior to the return on the warrant;

9. Arrest warrants and affidavits prio r to the arrest of the person named;

10. Proprietary business inform ation, § 30-14-406 (2005), MCA;

11. Judicial work product;

12. Court administration and clerk of court work product;

13. Certain court administration records;

14. Information gathered or created during th e investigatory phase that is related to the performance, misconduct or discipline of a lawyer, which had been deemed confidential pursuant to Rule 20 of the Rules of Lawyer Disciplinary Enforcement;

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Page 37 of 44 Privacy and Access Task Force November 2006 4.60 (Commentary, cont.)

15. Information gathered or created during th e investigatory phase that is related to the performance, misconduct or discipline of a judicial officer, which had been deemed confidential pursuant to Rule 7 of the Rule s of the Judicial Standards Commission;

16. Information gathered or created during th e investigatory phase related to alleged misconduct by entities or individuals regulated by the judiciary. Subsection (b) specifically allo ws a court to consider providing access to information to which access is categorically prohibited under section 4.50, as well as specific

information in a court record to which acce ss has previously been prohibited by a court pursuant to section 4.60(a). Th is subsection addresses those situations where the reasons for prohibiting access no longer apply or have changed so that the merits of public

disclosure of the information now ou tweigh the interest in privacy. .

Subsection (b) provides a standa rd and procedure for reviewing a previous decision to prohibit public access to information.

Subsection (b) provides that "any member of the public" can make the request for access to prohibited information. This term is defined broadly in section 2.00, an d includes the

media and business entities as well as individuals.

Subsection (c) contemplates a written motion seeking to prohibit, or gain, access. Although a motion is specified, the section is silent as to th e need for oral argument or testimony, leaving this up to the court. Notice is required to be give n to all parties by the requestor, except where prohibited by law." The subsection gives th e court discretion to require notice to be given to others identified in the information that is the subject of the request. If public access to the information was restricted by a prior request, the subsection requires the court to arrange for notic e to be given to the person who made the prior request. The process for seeking review by an appellate court is not specified in the policy, as the normal appeal process for a judicial decision is assumed to apply.

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## When Accessible

Section 5.00 – When Court Records May Be Accessed

(a) Court records will be available for pu blic access in the courthouse during hours established by the court. Court records in electronic form to which the court allows remote access under these rules will be available for access at least during the hours established by the court for c ourthouse access, subject to unexpected technical failures or normal system maintenance announced in advance.

(b) Upon receiving a request for access to in formation the court will respond within a reasonable time regarding the availability of the information and provide the

information within a reasonable time.

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

This section requires a court to specify wh en court records are accessible. The rules direct, as a minimum, that remote access be available at the same times as records are

accessible at the courthouse. This section does not preclude or require “after hours”

access to court records in elec tronic form. Courts are encouraged to provide access to records in electronic form beyond the hours acce ss is available at the courthouse, with a goal of 24 hours a day, seven days a week. Howeve r, it is not the inte nt of the rules to require courts to expend money or other resources to make remote access possible

outside of normal business hours. The sect ion acknowledges that access to electronic records may occasionally not be available during normal business hours because of unexpected interruptions to information tec hnology systems, crashes, and during planned interruptions such as for back -up of databases, software upgrades or maintenance, or hardware upgrades or maintenance.

Subsection (b) addresses the question of how quickly the information will be made

available. There are a number of factors that can affect how quickly the court responds to a request and provides the information, assuming it is publicly accessible. The response will be slower if the request is non-specific, is for a large amount of information, is for information that is in off-site storage, or requires significant amount s of court resources to respond to the request. The objective is to have a prompt and timely response to a

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Page 39 of 44 Privacy and Access Task Force November 2006 5.00 (Commentary, cont.)

request for information.



## Fees

Section 6.00 – Fees for Access

(a) Disclosure or distribution of documents is subject to the payment of applicable fees as set by statute.

(b) The court may charge a fee for bulk distribution or compiled information in

accordance with state law. To the extent th at public access to information is provided exclusively through a vendor, the court will en sure that any fee imposed by the vendor for the cost of bulk and compiled information is reasonable and covers the vendor's actual

costs.

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

This section recognizes that providing acce ss to information in court records does

consume court resources. Access is not without cost. Statutory fees of the clerk of district court are enumerated in § 25-1- 201, MCA. The preparation and access to the transcript of proceedings is within the author ity of the court reporter, not the court. In such instances the existing state laws and rule s governing the cost of the transcript, in paper or electronic form , apply. See § 3-5-604, MCA.

Fees for bulk access pursuant to section 4.30 or compiled access pursuant to section 4.40, which require special programming or actions because the information is not regularly available in the form requested, shall be calculated in accordance with § 2-6-110, MCA.

This section also provides th at if access is provided excl usively through a vendor, any fee imposed must be reasonable.

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Page 40 of 44 Privacy and Access Task Force November 2006 

### Section 7.00 -- Obligation of Vendor s Providing Information Technology Support to a Court to Maintain Court Records

(a) If a court contracts with a vendor to provide information technology support to gather, store, or make accessible court records, the contract will require the vendor to comply with the intent and provisions of these access rules. For purposes of this section, “vendor” includes a state, c ounty or local governmental agency that provides information technology services to a court as well as private

contractors.

(b) By contract the vendor will be require d to comply with the requirement of sections 8.10, 8.20, 8.30, 8.40 and 8.50 to e ducate litigants, the public, and its employees and subcontractors about th e provisions of the access policy.

(c) By contract the vendor will be require d to notify the court of any requests for

compiled information or bulk distributi on of information, including the vendor’s requests for such information for its own use. Accordingly, rules 4.30 and 4.40 apply.

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

This section addresses situations where inform ation technology services are provided to a court by another agency, usually in the execu tive branch, or by outsourcing of court information technology services to non-government al entities. The intent is to have the rules apply regardless of who is providing the services involving court records. Implicit

in these rules is that court records are unde r the control of the j udiciary, and that the judiciary has the responsibility to ensure publ ic access to court records and to restrict access where appropriate.

The section provides a standard applicable to vendors as well as the courts. Regulating

vendors is also relevant to the issue of liability of the court for release of information that causes harm, particularly if there is no judicial imm unity regarding adoption or implementation of a local policy.

Subsection (a): “Information technology support” is meant to include a wide range of activities, including records ma nagement services or equipment, making and keeping the verbatim record, computer hardware or soft ware, database management, web sites, and communications services used by the court to maintain court records and provide public

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Page 41 of 44 Privacy and Access Task Force November 2006 7.00 (Commentary, cont.)

access to them. It would also apply to vendor s who are only providing access to a copy of

electronic court records maintain ed by the court itself or by an executive branch agency.

Vendor compliance is particularly important where the vendor’s system is the only means of accessing the information. The court must ensure that the vendor is not using the

exclusive control of access to limit access, whether through fees, technology requirements, or a requirement to sign a “use r agreement,” particularly if it imposes

restrictions on the use of the in formation that the court could not impose. Subsection (b): The requirements of the ru les regarding a vendor edu cating its employees or subcontractors, litigants, and the public are in addition to any incentive to do so provided by the liability or indemnity provisions of a pplicable law or the c ontract or agreement
with the court.

Subsection (c): This subsection requires vendor s to notify the court of requests for bulk information (pursuant to sect ion 4.30) or compiled informati on (pursuant to section 4.40).

The court must receive this notice in order to properly control the release of information

in its records.



## Obligation of the Court to Inform and Educate

Section 8.00 – Information and Education Regarding Access Rules

Section 8.10 – Dissemination of Inform ation to Litigants about Access to

Information in Court Records

The court will make information available to litigants and the public that information in

the court record about them is accessible to the public, including remotely and how to request to restrict the manner of access or to prohibit public access.

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

This section recognizes that litigants may not be aware that information provided to the court, by them or other parties in the case, ge nerally is accessible to the public, including,

### Draft-Model Access Rules with Commentary Obligation of the Court to Inform and Educate

Page 42 of 44 Privacy and Access Task Force November 2006 8.10 (Commentary, cont.)

possibly, bulk downloads. Litigants may also be unaware that some of the information may be available in electronic form, possibly even remotely. This section requires the courts to inform litigants about public access to court records so they can make efforts to protect their privacy throughout the proceedings . Such a requirement ensures that the public is provided the information n ecessary to protect their interests.

This section also specifically requires the court to inform litigants of the process for requesting restrictions to the manner of acce ss under section 4.50, and to inform litigants about how to request prohibition of public acces s to information in their case pursuant to section 4.60. This would be especially impor tant in cases involving domestic violence, sexual assault, stalking, or reque sts for protective orders, a nd witnesses where there is a greater risk of harm to individuals.

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### Section 8.20 – Dissemination of Inform ation to the Public about Accessing

Court Records

The Court will develop and make information available to the public about how to obtain access to court records pursuant to these rules.

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

Public access to court records is meaningl ess if the public does not know how to access the records. This section establishes an oblig ation on the court to pr ovide information to the public, which should include jurors, victim s, witnesses and othe r participants in judicial proceedings, about how to access court records.



### Section 8.30 – Education of Judges and Court Personnel about the Access

Rules

All Courts and clerks of cour t shall ensure that their personnel comply with these access rules and respond to requests for access in a manner consistent with the rules.

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

This section mandates that the court and cler k of court educate and train their employees to be able to properly implement an acce ss policy. Properly trained employees will provide better customer serv ice, facilitating access when appropriate, and preventing access when access is restricted or prohibited. When properly trained, there is also less risk of inappropriate disclosure, there by protecting privacy and lowering risk to

individuals from disclosure of sensitive info rmation. Training should also be provided to employees of other agencies, or their contract ors, who have access to information in court records, for example as part of shared integr ated criminal justice information systems.

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### Section 8.40 – Education about Process to Change Inaccurate Information in

a Court Record

All Courts will inform the pub lic of the rules by which the court will correct, expunge or update inaccurate information.



### Section 8.50 - Procedure to Correct , Expunge or Update Inaccurate

Information

An individual who believes that a case r ecord contains clerical errors may submit a written request for correction to the court, clerk of court, orother custodian who maintains the record, with a copy served on all parties to the case. Such request shall be no longer than two pages in length. The custodian shal l promptly do one of the following:

(a) correct a clerical error for which no court or der is required: (b) forward the request to the court to be considered informally; or (c) forward the request to th e party or participant who submitted the record containing the alle ged clerical error w ho in turn may seek appropriate relief from the court. Upon forw arding under clause (b), the court may either

correct the error on its own initiative or dire ct that the request will only be considered pursuant to a motion requesting correction. The court’s direction may also establish appropriate requirements for a motion. The requ est for correction aut horized in the rule

need not be exhausted before other relief is requested.

Task Force Commentary and Selected Te xt from CCJ/COSCA Guidelines for

Public Access to Court Records

Court records are as susceptible to errors or incomplete informati on as any other public

record. Section 8.40 and 8.50 establishes the me thod for reviewing information in court records and making any changes or additions to make the record more accurate or complete.