March 2002

Privacy Issues and the Court System

by Pam L. Daniels

Domestic violence and family law matters have provided beacons of light to shine on privacy issues in Washington courts. These issues exist on two levels: the actual paper document in the court file; and the court data entered, managed and maintained in the Washington State Judicial Information System (JIS).

While the advancement of technology has provided tools for more efficiency, information and access, an added outcome has been the loss of personal privacy at local, state and federal levels. When individuals are faced with a choice between access and privacy, the average individual prefers privacy. Although citizens have become more aware of privacy issues at the government level involving their financial and medical records information, they are not aware of the growing access to court record information via technology. Document imaging and e-filing are becoming commonplace in federal courts, state supreme courts, courts of appeal, courts of general jurisdiction, and district and municipal courts throughout the United States, including Washington.

The JIS provides case-management automation to courts in Washington. It includes systems for appellate (ACORDS), superior (SCOMIS), limited jurisdiction (DISCIS), and juvenile (JUVIS) courts. Its purpose is two-fold: (1) to automate and support the daily operations of the courts, and (2) to maintain a statewide network connecting the courts and partner criminal justice agencies to the JIS database. Principal JIS clients are judicial officers, court managers and other court staff. Other clients include users from the state departments of corrections and licensing, law enforcement agencies, prosecutors, public defenders, the media and law firms.

At the superior court level, the JIS includes: (1) person information (term of art) for criminal and domestic-related cases, (2) statewide criminal case history for a person, and (3) domestic violence case and protection order history for a person.

In 1995, Senator Lorraine Wojahn sponsored Engrossed Substitute Senate Bill 5218 (domestic violence legislation), and Representative Jeralita Costa shepherded the bill through the House. The bill, passed with the intent of preventing conflicting domestic violence protection orders (e.g., anti-harassment, no-contact, and domestic violence protection), states:

RCW 26.50.135 Residential Placement or Custody of a Child — Prerequisite:
(1) Before granting an order under this chapter directing residential placement of a child or restraining or limiting a party's contact with a child, the court shall consult the judicial information system, if available, to determine the pendency of other proceedings involving the residential placement of any child of the parties for whom residential placement has been requested.…

RCW 26.50.160 Judicial Information System — Database:
To prevent the issuance of competing protection orders in different courts and to give courts needed information for issuance of orders, the judicial information system shall be available in each district, municipal and superior court by July 1, 1997, and shall include a database containing the following information:

(1) The names of the parties and the cause number for every order of protection issued under this title, every criminal no-contact order issued under chapter 10.99 RCW, every anti-harassment order issued under chapter 10.14 RCW, every dissolution action under chapter 26.09 RCW, every third-party custody action under chapter 26.10 RCW, and every parentage action under chapter 26.10 RCW;

(2) a criminal history of the parties; and

(3) other relevant information necessary to assist courts in issuing orders under this chapter as determined by the judicial information system committee. [1995 c 246 Sec. 18.]

A project team involving court staff, county clerks and the Administrative Office of the Courts (AOC) met to implement changes in JIS to effectuate the domestic violence legislation. It was in this project committee that county clerks raised concerns regarding the level of personal identifying information being sought for the JIS's order-tracking system. The role of the county clerk is to receive, manage and maintain all court records, which includes entering data into the state's JIS system for docketing, calendaring and case-management purposes. RCW 26.50.070(5) requires the clerk to enter any order issued under this section within one judicial day. The date and time of issuance and the expiration date of the order are to be entered. In addition to privacy concerns, the clerks had liability and constitutional concerns.

The statutes mandate entering the names of all parties in the JIS. Consulting the JIS case history prior to issuing an order regarding residential placement of or contact with a child requires each of the parties to be uniquely identified on the JIS. The AOC proposed an amendment of JISCR Rule 18 to give clerks additional authority to collect and record person information about parties in domestic relations, dependency, paternity, anti-harassment, domestic violence protection, and victims in criminal domestic violence-related cases:

Rule 18. Adding Records to the Judicial Information System
In all courts adding records to the Judicial Information System, for all persons on whom a case is filed on juvenile or adult criminal offenses, or infractions, and all parties in cases filed under Title 26 RCW, Title 13 RCW, or Chapters 10.14 or 10.99 RCW, or victims in domestic violence related criminal offenses, courts shall collect identifying information and create a record will be created in the person database according to to the extent required by the rules and procedures adopted by the Judicial Information System Committee. This requirement may also include dependents and household members as required by local courts or the rules and procedures adopted by the Judicial Information System Committee.

Identification information forms and protocols were created for gathering the personal information for clerks to enter into the database. Another concern was that the forms failed to inform the parties that the information would be going into a statewide database.

The good news is that, as a result of a lot of hard work on the part of county court clerks, the AOC, the JIS Committee (referred to above) and domestic violence advocates, a system has been put in place that everyone can live with. The focus of the personal information has been narrowed, and the form on which the information is collected makes it clear to the parties that some of the information requested is optional. The form also indicates that the information is confidential and will not be made a part of the court file. Parties are also made aware that the information will exist in the "confidential" JIS database and that it will only be available to authorized court-designated staff. As a result, where domestic violence is involved, the personal information of parties has been protected and the intent of the 1995 legislation has been met.

On October 29, 1999, the JIS Data Dissemination Committee, the governing body created by the state Supreme Court to administer the computer network that serves the state's courts, conducted a first-time hearing as part of a full-scale review of the court system's data-dissemination policy. The policy was adopted in 1995 to balance personal privacy interests against the courts' need to conduct business openly, and the public's right to know how courts do their job. As a result of the hearing, it became clear that courts needed to develop an appropriate balance between disclosure of public court records and personal privacy, especially where persons must disclose so much of their personal and financial information. Since that hearing, the committee has been revisiting its policies on public disclosure.

Having experienced the privacy issues addressed by the 1995 domestic violence legislation, which involved significant modification to the JIS (implemented in 1997), the courts have become more pro-active. Legislators, county clerks, domestic violence advocates, prosecutors, law enforcement, the WSBA, the Administrative Office of the Courts, judges and media have come to the table in the formation of workgroups focusing on access and privacy issues.

As family law has evolved over the years with its own rules, courts and forms, so have more processes, procedures and the personal information of parties, both with and without children. There were two known incidents in the past year where a party was a victim of identity theft as a result of information contained in court files. Social security numbers, birthdates and drivers' license numbers provide all the information necessary for someone to open bank, debit and credit card accounts, arrange for telephone services, and obtain loans. This information has been readily available on the state-mandated Petition for Dissolution form, since family law matters are public records when filed with the court.

In October 2000, a privacy workgroup was developed to address privacy issues with regard to family law forms.1 The primary focus of the workgroup was to address the personal identifying information contained in the forms. In conjunction with identifying the information, the group identified access-to-information issues, and addressed needed legislation to remove current requirements for including personal identifiers and financial information in court documents that are considered open records.

In 2000, county clerks tried to have social security numbers removed from mandated court forms through a legislative bill, but the Department of Social and Health Services (DSHS) objected because of federal requirements to have social security numbers in divorce decrees for child-support enforcement purposes. The privacy workgroup addressed this issue and was able to arrive at a mutually agreed upon bill — hence, Substitute Senate Bill (SSB) 5975 sponsored by Senator Costa in 2001.

SSB 5975 removes the requirement that certain personal identifiers (social security numbers, drivers' license numbers, residential addresses, residential telephone numbers, and childrens' birthdates) be on the face of pleadings, and requires that the information be filed in an accompanying document entitled "confidential information form" or other such document that the court requires. A companion proposed court rule has been developed that restricts access to the confidential information form to only court staff, the state agency responsible for collecting child support, or by court order. Federal child support enforcement requirements will be satisfied by collecting the information on the confidential information form, and the personal identifiers contained on that form will not be generally open to public access.

County clerks have long awaited this bill, having been concerned for years about the personal data required in domestic forms, the JIS database, and the privacy of individuals. An average of 3,200 domestic cases are filed each year in Snohomish County, which represents approximately one-tenth of the state's court business. Statewide, 37,824 domestic cases were filed in 2001 with social security numbers, bank account and credit card numbers, tax returns, etc. in open court files for public access, viewing and copying.

SSB 5975 represents significant work on the part of the WSBA, county clerks, DSHS, judges, the press and the AOC. The bill provides systems for maintaining separate records in domestic relations cases to protect the privacy of individuals and minimize misuse of open court records for criminal activity such as identity theft.

The "family law privacy" bill was signed into law by Governor Locke and amends RCW 26.09.020, 26.21.305, 26.23.050, 26.23.055 and 26.26.130, effective October 1, 2001. General Court Rule (GR)22, regarding access to family court records, sets forth the means to implement SSB 5975, as well as defining access restrictions. The Washington Pattern Forms Committee has developed the confidential forms set forth in the bill and court rule as follows:

Parties to a family law case shall not be required to provide restricted personal identifiers in any document filed with the court or required to be provided upon filing a family law case, except:

(1) "Sealed financial source documents" filed in accordance with GR22(e)(1) below:

(2) The following confidential forms: Confidential Information Form, Domestic Violence Information Form, Vital Statistics Form, Law Enforcement Information Form, Foreign Protection Order Information Form and any Personal Information Sheet necessary for Judicial Information System purposes.

(3) Court requested documents that contain restricted personal identifiers.

Per (d)(1) of the court rule, "sealed financial source documents" would include tax returns, bank statements, credit card bills, wage stubs, W-2s, insurance statements, copies of checks, NSF check records, phone bills, collection letter/notices, credit applications and loan documents. Procedurally, clerks place the sealed financial records form cover sheet in the court file, and place the attached confidential records in a sealed file. The JIS SCOMIS docket shows that a sealed financial records form was filed identifying the "titles" of documents, but the confidential records themselves are sealed.

Per (d)(2) of the court rule, currently the law enforcement information sheet and foreign protection order information form exist, and neither is kept in the court file. The new confidential information form indicates: "KEEP CONFIDENTIAL," and also is not kept in the court file. Counties have different practices in managing documents. County clerks may keep these confidential records in separate files or envelopes, or identified and separated within the existing court file for removal by the clerk when access is requested by the public.

The court system must be sensitive to the appropriate balance between disclosure of public records and privacy with respect to very sensitive personal information demanded of individuals using our court system. (See Privacy of Court Records by Washington Supreme Court Justice Philip Talmadge, 2000, http://www.courts.wa.gov/editorial/privacy.cfm.)

The JIS 2000 Strategic Plan includes a new Web-based approach and electronic filing. These features clearly will enhance and improve the functionality of the JIS. It will also assist the courts and clerks in their ongoing efforts to meet access-to-justice needs of individuals involved in the court system.

On balance, a public hearing was held in March 2001 in Washington, D.C., with a panel of eight federal judges, on the privacy and security implications of a plan to grant public Internet access to all U.S. court documents. Many debates took place over what information, how much information and use of the information. Comments came from organizations with the biggest stake in the debate — journalists, legal foundations, and privacy and security advocates.

U.S. Chief Judge John Lungstrum (chair of the Judicial Conference Committee on Court Administration and Case Management) submitted recommendations to the Judicial Conference that documents in civil cases and bankruptcy cases, with some personal identifiers excluded, should be made available electronically, but that access to criminal case documents should not be available at this time. The Committee on Court Administration and Case Management plans to make a report to the Judicial Conference regarding any amendment to the recommendations no later than September 2003.

Privacy issues and the court system, whether at state or federal levels, will continue to be issues as new technology trails are blazed. While court systems have historically been slow to change, technology has forced change upon us. For all the forward-thinking, futuristic opportunities that technology is providing, it is interesting to note how our forefathers instituted a system of checks and balances that works very well today as we grapple with technology-driven privacy issues and the court system. In Washington, the check-and-balance systems are working very well. They will continue to work well as long as individuals and groups are willing to commit the time, vision and leadership necessary to make it happen. As a body, there is a collective consciousness that has identified these privacy issues. Stakeholders at all levels are "at the table" in open dialogue as they strive to provide more efficient access to information in our open state court systems, while protecting individual rights to privacy.

1. The workgroup consisted of Supreme Court Justice Bobbe Bridge, Court of Appeals Judge Ken Grosse, King County Superior Court Judges Dale Ramerman and Deborah Fleck, Snohomish County Superior Court Judge Tom Wynne, King County Commissioner Kimberley Prochnau, Snohomish County Clerk Pam Daniels, Thurston County Clerk Betty Gould, Chelan County Clerk Siri Woods, King County Chief Administrative Officer of the Superior Court Paul Sherfey, attorney Mark Weiss representing the WSBA Family Law Section, Mary McQueen of AOC, Michael J. Killeen representing Allied Daily Newspapers of Washington, and Diana Kramer on behalf of Washington Newspaper Publishers Association.