Courts struggle to balance privacy and openness in giving access to court files over the Internet
By Dean Jobb
Halifax
July 18 2008
The age of Internet access to court records has dawned in Canada, bringing
with it concerns that easy access to registry files could lead to the misuse of
confidential or sensitive information long buried under reams of paper.
British Columbia is leading the way, with online access to some 200,000 court
documents and more to come, and the Supreme Court of Canada will decide this
fall whether to begin posting factums filed in advance of its hearings.
“It’s just the way people communicate now, by and large,” the Supreme Court’s
deputy registrar, Louise Meagher, says of the trend toward making more court
records available online.
New court rules will make it mandatory for counsel to electronically file
Supreme Court of Canada factums this fall, she notes. The proposal to take the
next step and post them on the court’s website is a response to the demand among
lawyers, academics and law students for access to the legal arguments behind
court rulings.
“They’re a valuable source of legal knowledge,” Meagher told The Lawyers
Weekly.
Court officials in B.C. recognized the value of their files as early as 1999,
launching a web-based service called Court Services Online that provides access
to selected court records for a fee of $6 per file.
“It’s about moving to the electronic world, moving the court file to an
electronic court file,” says Andrew Clark, a consultant to the province’s
Attorney General’s Department, who is spearheading the initiative.
Canada’s courts have been posting rulings for years. Some courts have begun
posting docket information about upcoming hearings and some court-related
information, such as judgments, has long been available through online property
registries.
But judges and court officials are only beginning to explore the implications of
posting the records behind rulings and dockets — criminal informations and
indictments, statements of claim and defence in civil cases, and the orders,
affidavits, exhibits and transcripts that round out a court file.
Online access and keyword searches remove the drudgery and expense associated
with searching paper records, making it possible for anyone to peruse thousands
of court files in seconds. The so-called “practical obscurity” that shields
information in paper records is removed, providing ready access to those seeking
to find — and possibly misuse — personal information about litigants.
“Right now, even though in theory there’s access, the practical fact is that
people don’t go to court files normally and go through all that paper,” says
Judith Huddart of the Toronto firm Dranoff & Huddart. She and other family law
practitioners worry that information routinely filed in divorce and custody
cases — tax returns, financial and property records, details about children —
could fall into the wrong hands.
“We’re concerned in terms of the implications of people being able to easily
access information in family law files... think about predators, or people that
are stealing identities... family law is the perfect forum for finding out that
information.”
But David Coles, a Nova Scotia lawyer who acts for the CBC and other media
outlets, rejects the notion that information should be removed from the public
record simply because electronic access makes it easier to find. Canada’s courts
are open to public scrutiny and should remain open in the Internet age.
“All it’s doing, in my opinion, is providing ready access to what should already
be accessible,” says Coles, who practises with the Dartmouth firm Boyne Clarke.
“There’s inconvenience and perhaps expense now to exercise one’s right of
access. Being able to do it electronically eliminates those barriers, but those
barriers aren’t philosophic barriers, they’re just simply practical barriers.
“Surely the issue is, are they documents that should be public? If they are,
then we should facilitate ready access. If, on the other hand, the nature of the
document is such that for policy reasons it should not be public, then it
doesn’t belong in the public registry.”
The judiciary has been grappling with how to balance privacy concerns and the
open court principle since 2003, when a committee of the Canadian Judicial
Council released a discussion paper exploring the pros and cons of electronic
access to court records.
In 2005 the Judges’ Technology Advisory Committee released a model access policy
emphasizing openness but recommending measures to prevent the use of court
records “for improper purposes, such as commercial data mining, identity theft,
stalking, harassment and discrimination.”
The committee’s main concern is restricting online access to “personal data
identifiers” that could be included in court records, such as birthdates, street
addresses, e-mail accounts, phone numbers, social insurance numbers and bank
account information. Such details should not be disclosed through online
databases and everyone who creates or handles court records — counsel, clerks
and judges alike — should ensure such information is included only when it is
relevant to the case.
Huddart, the past chair of the Canadian Bar Association’s national family law
section, helped formulate the CBA’s submission to the advisory committee and
says such precautions are prudent.
“It’s a balancing act,” she says. “All courts have to move to the electronic
format.... We’re burying our heads in the sand if we think this is never going
to happen. It’s only a question of when, not whether.”
But Coles is not so sure information — even personal information — can be
withheld from the Internet after the fact. “Are we going to go back and somehow
edit or censor what happened in the public courtroom... because somebody may be
concerned that what was said may be used for an ulterior purpose? This gets
really dangerous, if you start after the fact rewriting evidence... what we’re
sacrificing is respect for the administration of justice.”
While such information is unlikely to crop up in Supreme Court of Canada
factums, Meagher says the court is devising policies that would restrict web
access to factums if a publication ban or sealing order is in place.
British Columbia’s online system has been designed with this balancing act in
mind. “A big aspect of this whole project has been, what are we allowed to
display?” says Clark, the project manager. Court Services Online provides access
to records of civil cases — superior court as well as small claims — but
criminal and family law files are not accessible. Electronic indexes with
“tombstone” information about cases — names of parties, dates of filing,
disposition — are also available.
Registry agents and law firms are the biggest users of the system, which
provides quick and convenient access to files and makes it faster and cheaper to
conduct due diligence research.
None of the information posted exposes litigants to the risk of identify theft
or other abuse, says Thomas Broeren, a lawyer who’s a consultant to the project.
“Most of the information that’s available is stuff that you get out of the
phonebook or could get using Canada 411.” As well, Clark points out, affidavits
and exhibits are not posted online since they may contain sensitive information
or unproven allegations.
B.C. plans to begin providing access to basic information about criminal cases
later this year, but not the documents themselves. “We’re expanding access very
cautiously and obviously at the discretion and decision of the judiciary in
terms of what becomes available and accessible,” says Clark.
Meanwhile, courts in other jurisdictions are moving to systems to e-file
documents and considering how much online access to provide. British Columbia
signed a deal with the Quebec government in February to share its justice system
information technologies, including Court Services Online. Quebec is already a
leader in providing court access to rulings.
“It would be wonderful if we could do something on a national basis,” notes
Huddart. “A lot of this stuff is governed provincially, and that’s why you end
up with different approaches from province to province. It’s very frustrating.”