Thursday, October 13, 2005

Judicial Council Recommends Limited Net Access to Court Records

This announcement did not seem to attract a lot of attention.

Last week, the Globe and Mail wrote an article entitled "Panel wants most court files kept off Web" (Oct. 6, p. A8, no longer available from the newspaper's website to non-subscribers).

The article discussed a new "model policy" developed by the Canadian Judicial Council on electronic access to court information.

The proposed policy suggests that judgments and docket information be made available on the Internet but with significant restrictions. Specifically:
  • personal information should be deleted from publicly accessible documents (phone numbers, addresses and social insurance numbers, etc.);
  • court filings should not be universally available (affidavits, motion records, pleadings);
  • case files should be available via the Net only to individuals and lawyers directly involved in the case, and;
  • access by the media should be by special request
The overall idea is that access to open courts needs to be balanced with protection of parties from potential abuses and misuses of personal information, including the fear that personal data in court files could be exploited for identity theft. As well, many allegations, not yet proven in trial, are made in court filings, and these could cause serious damage to innocent people if they fell into unscrupulous hands.

Oddly, given the seriousness of the issues, there seem to have been very few reactions.

The only 2 comments in major publications appear to be from the Globe and Mail itself and from the Montreal Gazette.

In an October 11 editorial entitled "Sensible restrictions on freedom", the Gazette wrote approvingly of the proposed restrictions. Referring to family law rulings specifically, the Montreal daily noted that:

"(...) motions, exhibits, affidavits, and physician reports, many of which include intensely personal (not to say extraneous) information, should remain at the courthouse, available only to those who take the trouble to apply. However this might smack of censorship - ... - the rationale is compelling. Lawsuit claims and divorce motions often include false and defamatory allegations... Judges have already reacted to runaway Internet chatter by sealing more documents and imposing more publication bans. To open the floodgates would only provoke more draconian case-by-case controls from the bench. Free-speech advocates will frown at any restrictions at all. But the middle way might well be the best way, in a democracy that values both access and privacy."

The Globe and Mail reacted with open hostility to the proposed idea in an October 8th comment entitled "The judges are building an Internet roadblock".

Writing of the more open U.S. experience with public access to court documentation, the paper remarked that personal information such as social insurance numbers and the names of children are deleted from American files too and that users must register and provide credit-card or debit-card information and pay a small charge for each page viewed. But, "(T)here have been no reports of resulting anarchy".

It then went on to wonder about "the disabled, the elderly, wage workers, parents of small children, people living in small towns" who can't make it to the local courthouse. "Don't the courts belong to them, too?" And it questioned the many other barriers to even physical access to court files for those people who do bother to show up at the courthouse counter, including high fees for ordering and photocopying documents, and searching computer systems it described as user-hostile.

But the Globe's main complaint had to do with what it considered to be the official Canadian culture of secrecy, something the paper explained was documented earlier this year when as part of a Canadian Newspaper Association project on freedom of information, reporters from 45 member newspapers simultaneously visited government offices across Canada asking for access to information on topics such as class size, police suspensions and restaurant inspections: "many [reporters] were turned away empty-handed. None of your business, they were told."

The Globe concluded that the Judicial Council recommendations can be read as fitting into an "infuriating and outdated approach" to information.

A crucial debate about the appropriate limits to access to information and openness of the courts in Canadian society, which seems to have attracted very little attention so far.

For background reading, last spring, the Council approved the report entitled Use of Personal Information in Judgments and Recommended Protocol. This focused on judgments containing sensitive personal information or information subject to publication bans.

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posted by Michel-Adrien at 7:16 pm


Anonymous Anonymous said...

The Policy is at

10:01 am  

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