Canadian Judicial Council Guidelines for Management of Requests for Bulk Access to Court Information by Commercial Entities

The Canadian Judicial Council (CJC) has published new guidelines for the Management of Requests for Bulk Access to Court Information by Commercial Entities:

"Courts across Canada are grappling with requests by commercial entities for bulk access to Court Information to aggregate, analyze, repackage, commercialize and distribute it, particularly court decisions, orders, and other documents typically found in Court Records."

"This demand has traditionally been driven by publishers of research systems and precedent databases. Increasingly, however, requests are coming from a more diverse range of organizations, some motivated by intent to apply advanced analytics or machine learning algorithms to predict individual and collective decision-making outcomes based on features such as judges or counsel names, and fact patterns."

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"While access to Court Information must be a core tenet underpinning ‘open justice’, it is also important to balance this by mitigating the risk that inadvertent release of private or sensitive information residing in court files does not cause harm to vulnerable people, undue distress or a risk of identity theft arising from malicious use."

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"The objective of this report is to propose a common approach and guidelines to assist Canadian courts responding to requests for bulk access to Court Information. The proposed mechanisms are aimed at recalibrating the core principles of ‘access’ and ‘open courts’ in the context of digital information and online service delivery. Access issues were much easier to navigate at a time when court information was held in paper files and the need for physical attendance at a courthouse effectively meant that information was practically obscured and thereby protected from broad, inappropriate use. It is now more challenging to balance ‘access’ principles with other important principles including preserving integrity, safeguarding the administration of justice, protecting the reputation and integrity of the court and the judiciary, and mitigating risks associated with misuse of private or sensitive information."

"The Framework specifically identified some potential risks associated with an overly cavalier approach to the ‘open courts’ principle in an era where Court Information is stored in electronic rather than paper format, where sensitive Judicial Information and private data is intermingled with other information on court files and databases and when the effective protections afforded by practical obscurity are no longer present."

"A more recent, emerging consideration, many will see as a risk, is the trend towards application of predictive analytics and artificial intelligence (AI) algorithms to Court Information. While there are some potential benefits from these developments, there are also some risks associated with incorrect predictions and the ramifications of reliance upon the output from biased or poorly designed machine learning models. The key question here though is whether it is the role of the judiciary to make determinations about the quality or effectiveness of such services and whether courts are in any event resourced to wade into such territory."

The CJC's  role is to ensure the proper conduct of federally appointed judges. This includes the power to investigate the conduct - and not the decisions - of federally appointed judges when a complaint is made against one of them.

The Council also makes recommendations on issues relating to court management and technology.

It is chaired by the Chief Justice of the Supreme Court of Canada.