Redaction Software Helps Walk Access & Privacy Tightrope: Part 1

Courts face this challenge daily - how do you put documents online and not violate the privacy of litigants? It’s no easy task. Court files are a literal treasure trove of private information. The Florida court system has struggled with this issue for a long time. Florida is somewhat unique in that it has two competing provisions in its constitution. One is a right to privacy. The other is Florida’s so-called Sunshine Law that makes virtually all of Florida’s public records open to the public. That includes court records. The problem is not limited to Florida. Every court faces the same issues. This is the first of five blog posts setting forth lessons learned from Florida’s almost fifteen-year experience putting documents online. Later articles in the series include recommended best practices using policy and technology tools such as intelligent redaction software to balance privacy and access. 

Electronic filing and online access to court documents are not synonymous. Just because a court receives electronic documents does not mean it has to make the files available online. But as any court that has electronic filing can attest, once you get documents electronically, the pressure to put those documents online is enormous. Everyone wants access. And not just access, immediate access.

Online court records are nothing new. The federal court system has long had PACER. PACER is the viewing companion to the federal court system’s e-filing system. PACER allows subscribers, for a fee, to access certain records in federal court cases. But as state courts started putting documents online, the difficulties of doing so while protecting privacy interests quickly become apparent. There are probably no other government records that contain as much personal information about people.

Florida has a tortured history of getting documents online. That history included a ban on putting court documents online that lasted more than ten years. Even states with documents already online can learn from Florida’s experience.

Florida’s clerks started putting documents online around the year 2000, maybe even earlier. It's difficult to tell exactly because many of the earlier attempts were abandoned and the documents removed. The Florida Supreme Court started putting all appellate briefs from that court online in October of 2000. During that year the Florida Supreme Court, based on recommendations from the Florida Judicial Management Council, formed a special committee to look into the situation and make recommendations. The Florida Legislature passed a law banning documents in family law, probate and juvenile cases from being placed on a “publicly available” web site. As a result, many clerks made the documents available through subscription services. Finally in 2004 based on the recommendation of two different court committees and a legislative committee, the Florida Supreme Court imposed a limited moratorium on placing electronic court documents online. That didn’t end it.

Almost immediately the Manatee County Clerk’s office sought approval of a pilot project to test putting documents online pursuant to a “matrix” it had developed to find confidential information in the files and allow access based on the user’s role. The Supreme Court approved the project. The matrix is essentially a complex chart that classifies those seeking access to documents and then categories documents based on the likelihood of having confidential information. A description of the matrix will be included in an upcoming blog. For the next ten years the Court, through committees, studied the issue.

It started with amending the procedural rules to limit the number of documents with confidential information from being filed. Social Security numbers, Driver’s License information, credit card numbers, home addresses and lots of other information, not crucial to the case, were not to be contained in documents filed with the court. The court passed a rule identifying certain information confidential under state law and put the burden on the filer to specifically notify the clerk of court that such information was in a filing and where it was located. That same rule required clerks to also screen for that same information in case the filer missed it. A procedure was to put in place to only place those documents online after being processed with redaction software. The documents were kept offline in the event of a challenge until the issue was resolved. Users wanting access were required to sign user agreements based on their role in the court system. Ultimately Manatee County sought to have their pilot program approved and to be able to put documents online pursuant to the program. After review and some extensive audits, the court approved the program and allowed Manatee to become operational with their online documents system.

During those ten years lots of other changes took place. Florida went from having a few locally approved e-filing systems to one statewide e-filing Portal. E-filing became mandatory for all attorneys. The Portal was expanded to allow filing by lots of others users. Self-represented litigants, process servers, court reporters and many others were given access to e-filing. The number of documents being filed electronically exploded. Now more than 8,000,000 pages of documents are filed every day through the Portal.

The court then set about the process of having the Manatee system become the model for the statewide system. The matter was referred to Florida’s Court Technology Commission. The Commission reviewed the Manatee matrix and tweaked it. The Commission recommended to the Court that it approve the matrix and allow all clerks throughout the state to place documents online if they complied with the matrix.

In December 2014 the Florida Supreme Court approved the Commission’s recommendation and approved clerks conducting pilot projects to put court records online. All the remaining clerks applied and were approved for 90-day pilot programs.

In my next post I'll cover what documents are allowed online in the Florida Court System and how private information within them is protected.

About the Author: Tom Hall

Tom Hall has spent more than 25 years working in the Florida Appellate Courts as law clerk, chief staff attorney and Clerk of the Florida Supreme Court. He was instrumental in effecting change throughout the court system and fostering improvements in both management and technology. Tom currently serves on the Rules of Judicial Administration and Appellate Court Rules Committees and is a member of the Vision 2016 Commission. Since retiring from the FL Supreme Court, Tom has returned to practicing appellate law and continues to advocate on behalf on numerous clients for improvements in the court system as president of TLH Consulting Group, LLC.