THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART VII. ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS
[ 204 PA. CODE CH. 213 ]
Order Amending Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts; No. 496 Judicial Administration Doc.
[48 Pa.B. 2113]
[Saturday, April 14, 2018]
Order Per Curiam
And Now, this 28th day of March, 2018, upon the recommendation of the Administrative Office of Pennsylvania Courts to amend the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts to include all minor courts within the scope of the Policy and achieve one statewide policy for case records in every court:
It Is Ordered that:
1) The Policy is amended to read as follows.
2) The name of the Policy is amended as follows Case Records Public Access Policy of the Unified Judicial System of Pennsylvania.
3) The Administrative Office of Pennsylvania Courts shall publish the amended Policy and accompanying Explanatory Report on the Unified Judicial System's website.
4) Every court and custodian's office, as defined by the Policy, shall continuously make available for public inspection a copy of the amended Policy in appropriate physical locations as well as on their website.
5) The Public Access Policy of the Unified Judicial System of Pennsylvania: Official Case Records of the Magisterial District Courts is hereby rescinded as of July 1, 2018.
6) Whereas prior distribution and publication of this rule would otherwise be required, it has been determined that immediate promulgation is required in the interest of justice and efficient administration. Pa.R.J.A. No. 103(a)(3).
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective July 1, 2018.
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART VII. ADMINISTRATIVE OFFICE OF PENNSYLVANIA COURTS
CHAPTER 213. COURT RECORDS POLICIES
Subchapter D. CASE RECORD PUBLIC ACCESS POLICY OF THE UNIFIED JUDICIAL SYSTEM OF PENNSYLVANIA[: CASE RECORDS OF THE APPELLATE AND TRIAL COURTS] § 213.81. Case Record Public Access Policy of the Unified Judicial System of Pennsylvania[: Case Records of the Appellate and Trial Courts].
Section 1.0. Definitions.
A. ''Abuse Victim'' is a person for whom a protection order has been granted by a court pursuant to Pa.R.C.P. No. 1901 et seq. and 23 Pa.C.S. § 6101 et seq. or Pa.R.C.P. No. 1951 et seq. and 42 Pa.C.S § 62A01 et seq. as well as Pa.R.C.P.M.D.J. No. 1201 et seq.
B. ''Case Records'' are (1) documents for any case filed with, accepted and maintained by a court or custodian; (2) dockets, indices, and documents (such as orders, opinions, judgments, decrees) for any case created and maintained by a court or custodian. This term does not include notes, memoranda, correspondence, drafts, worksheets, and work product of judges and court personnel. Unless otherwise provided in this policy, this definition applies equally to case records maintained in paper and electronic formats.
C. ''Clerical errors'' are errors or omissions appearing in a case record that are patently evident, as a result of court personnel's action or inaction.
D. ''Court'' includes the Supreme Court, Superior Court, Commonwealth Court, Courts of Common Pleas, [and] Philadelphia Municipal Court, [excluding the Traffic Division of Philadelphia Municipal Court] and Magisterial District Courts.
E. ''Court of Record'' includes the Supreme Court, Superior Court, Commonwealth Court, Courts of Common Pleas, and Philadelphia Municipal Court.
[E.] F. ''Court Facility'' is the location or locations where case records are filed or maintained.
[F.] G. ''Custodian'' is any person responsible for maintaining case records or for processing public requests for access to case records.
[G.] H. ''Docket'' is a chronological index of filings, actions, and events in a particular case, which may include identifying information of the parties and counsel, a brief description or summary of the filings, actions, and events, and other case information.
[H.] I. ''Financial Account Numbers'' include financial institution account numbers, debit and credit card numbers, and methods of authentication used to secure accounts such as personal identification numbers, user names and passwords.
[I.] J. ''Financial Source Documents'' are:
1. Tax returns and schedules;
2. W-2 forms and schedules including 1099 forms or similar documents;
3. Wage stubs, earning statements, or other similar documents;
4. Credit card statements;
5. Financial institution statements;
6. Check registers;
7. Checks or equivalent; and
8. Loan application documents.
[J.] K. ''Medical/psychological records'' are records relating to the past, present, or future physical or mental health or condition of an individual.
[K.] L. ''Minor'' is a person under the age of eighteen.
[L.] M. ''Party'' is one who commences an action or against whom relief is sought in a matter.
[M.] N. ''Public'' is any person, member of the media, business, non-profit entity, organization or association. The term does not include a party to a case; the attorney(s) of record in a case; Unified Judicial System officials or employees if acting in their official capacities; or any federal, state, or local government entity, and employees or officials of such an entity if acting in their official capacities.
[N.] O. ''Remote Access'' is the ability to electronically search, inspect, print or copy information in a case record without visiting the court facility where the case record is maintained or available, or requesting the case record from the court or custodian pursuant to Section 4.0.
Commentary Regarding Subsection B, ''documents for any case filed with, accepted and maintained by a court or custodian'' are those not created by a court or custodian, such as pleadings and motions. Indices are tools for identifying specific cases.
Regarding Subsection C, examples of clerical errors are the docket entry links to the wrong document or court personnel misspells a name in the caption.
Regarding Subsection [F] G, the definition of ''custodian'' includes clerks of court, prothonotaries, clerks of orphans' court and magisterial district judges, for example. The definition does not include those entities listed in Pa.R.A.P. 3191 who receive copies of briefs filed in an appellate court or a register of wills.
Regarding Subsection [J] K, this definition is derived from the definition of ''health information'' provided in 45 C.F.R. § 160.103 (HIPAA). Examples of case records that would fall within this exclusion are: drug and alcohol treatment records, psychological reports in custody matters, and DNA reports.
Regarding Subsection [L] M, amici curiae are not parties. See Pa.R.A.P. 531.
Regarding Subsection [M] N, Unified Judicial System officials or employees include: judicial officers and their personal staff, administrative staff and other central staff, prothonotaries, clerks of the courts, clerks of the orphans' court division, sheriffs, prison and correctional officials, and personnel of all the above.
Section 2.0. Statement of General Policy.
A. This policy shall govern access by the public to case records.
B. Security, possession, custody, and control of case records shall generally be the responsibility of the applicable custodian and designated staff.
C. Facilitating access by the public shall not substantially impede the orderly conduct of court business.
D. A court or custodian may not adopt more restrictive or expansive access protocols than provided for in this policy. Nothing in this policy requires a court or custodian to provide remote access to case records. However, if a court or custodian chooses to provide remote access to any of its case records, access shall be provided in accordance with Section 10.0.
Commentary [The Supreme Court of Pennsylvania has adopted other policies governing public access to Unified Judicial System case records: the] The Electronic Case Record Public Access Policy of the Unified Judicial System of Pennsylvania [that] provides for access to the statewide case management systems' web docket sheets and requests for bulk data [and the Public Access Policy of the Unified Judicial System of Pennsylvania: Official Case Records of the Magisterial District Courts that provides for access to case records of the magisterial district courts maintained in a paper format].
Section 3.0. Access to Case Records.
All case records shall be open to the public in accordance with this policy.
Section 4.0. Requesting Access to Case Records.
A. When desiring to inspect or copy case records, a member of the public shall make an oral [or written] request to the applicable custodian, unless otherwise provided by [court order or rule] a local rule or an order issued by a court of record. [If the request is oral, the custodian may require a written request.]
B. When the information that is the subject of the request is complex or voluminous, the custodian may require a written request. If the requestor does not submit a written request when required, access may be delayed until the written request is submitted or a time when an individual designated by the custodian is available to monitor such access to ensure the integrity of the case records is maintained.
[B.] C. Requests shall identify or describe the records sought with specificity to enable the custodian to ascertain which records are being requested.
Commentary Public access requests to the courts and custodians are routinely straightforward and often involve a limited number of records. Therefore, artificial administrative barriers should not be erected so as to inhibit making these requests in an efficient manner.
This policy provides the courts and custodians latitude to establish appropriate administrative protocols for viewing/obtaining case records remotely. However, the definition of ''remote access'' in Section 1.0 clarifies that a request under this section is neither necessary nor expected under this policy.
Nonetheless, Subsection [A] B provides a custodian with the flexibility to require that a more complex request be submitted in writing to avoid misunderstandings and errors that can often result in more time being expended to provide the requested information than is necessary. This approach is not novel; submission of a written request form has been a longstanding practice under the Unified Judicial System's Electronic Case Record Public Access Policy of the Unified Judicial System of Pennsylvania [and Public Access Policy of the Unified Judicial System of Pennsylvania: Official Case Records of the Magisterial District Courts].
Subsection [B] C does not require a requestor to identify a case by party or case number in order to have access to the files, but the request shall clearly identify or describe the records requested so that court personnel can fulfill the request.
Written requests should be substantially in the format designed and published by the Administrative Office of Pennsylvania Courts.
Section 5.0. Responding to Requests for Access to Case Records.
A. A custodian shall fulfill a request for access to case records as promptly as possible under the circumstances existing at the time of the request.
B. If a custodian cannot fulfill the request promptly or at all, the custodian shall inform the requestor of the specific reason(s) why access to the information is being delayed or denied.
C. If a custodian denies a written request for access, the denial shall be in writing.
D. [Relief] Except as provided in Subsection E, relief from a custodian's written denial may be sought by filing a motion or application with the court for which the custodian maintains the records.
E. Relief from a magisterial district court may be sought by filing an appeal with the president judge of the judicial district or the president judge's designee. Relief from a written denial by the Philadelphia Municipal Court may be sought by filing a motion with the president judge of Philadelphia Municipal Court or the president judge's designee.
Commentary Given that most public access requests for case records are straightforward and usually involve a particular case or matter, custodians should process the same in an expeditious fashion.
There are a number of factors that can affect how quickly a custodian may respond to a request. For example, the custodian's response may be slowed if the request is vague, involves retrieval of a large number of case records, or involves information that is stored off-site. Ultimately, the goal is to respond timely to requests for case records.
In those unusual instances in which access to the case records cannot be granted in an expeditious fashion, the custodian shall inform the requestor of the specific reason(s) why access to the information is being delayed or denied, which may include:
• the request involves such voluminous amounts of information that the custodian is unable to fulfill the same without substantially impeding the orderly conduct of the court or custodian's office;
• records in closed cases are located at an off-site facility;
• a particular file is in use by a judge or court staff. If a judge or court staff needs the file for an extended period of time, special procedures should be considered, such as making a duplicate file that is always available for public inspection;
• the requestor failed to pay the appropriate fees, as established pursuant to Section 6.0 of this policy, associated with the request;
• the requested information is restricted from access pursuant to applicable authority, or any combination of factors listed above.
[An] With respect to Subsection D, an aggrieved party may seek relief from a denial of a written request for access consistent with applicable authority (for example, in an appellate court, Pa.R.A.P. 123 sets forth procedures for applications for relief under certain circumstances, or pertinent motion practice at the trial court level).
Section 6.0. Fees.
A. Unless otherwise provided by applicable authority, fees for duplication by photocopying or printing from electronic media or microfilm shall not exceed $0.25 per page.
B. [A] Except as provided in Subsection C, a custodian shall establish a fee schedule that is (1) posted in the court facility in an area accessible to the public, and (2) posted on the custodian's website.
C. Any fee schedule for a magisterial district court shall be established by the president judge of the judicial district by local rule pursuant to Pa.R.J.A. No. 103(c). The fee schedule shall be publicly posted in an area accessible to the public.
Commentary Reasonable fees may be imposed for providing public access to case records pursuant to this policy and in accordance with applicable authority. This section does not authorize fees for viewing records that are stored at the court facility.
To the extent that the custodian is not the court, approval of the fee schedule by the court may be necessary.
An example of applicable authority setting forth photocopying fees is 42 Pa.C.S. § 1725(c)(1)(ii) that provides the Clerk of Orphans' Court of the First Judicial District shall charge $3 per page for a copy of any record. See also 42 P.S. § 21032.1 (providing authority for the establishment of fees in orphans' court in certain judicial districts). In addition, the copying fees for appellate court records are provided for in 204 Pa. Code § 155.1. However, copies of most appellate court opinions and orders are available for free on the Unified Judicial System's website, www.pacourts.us.
Section 7.0. Confidential Information.
A. Unless required by applicable authority or as provided in Subsection C, the following information is confidential and shall be not included in any document filed with a court or custodian, except on a Confidential Information Form filed contemporaneously with the document:
1. Social Security Numbers;
2. Financial Account Numbers, except an active financial account number may be identified by the last four digits when the financial account is the subject of the case and cannot otherwise be identified;
3. Driver License Numbers;
4. State Identification (SID) Numbers;
5. Minors' names and dates of birth except when a minor is charged as a defendant in a criminal matter (see 42 Pa.C.S. § 6355); and
6. Abuse victim's address and other contact information, including employer's name, address and work schedule, in family court actions as defined by Pa.R.C.P. No. 1931(a), except for victim's name.
This section is not applicable to cases that are sealed or exempted from public access pursuant to applicable authority.
B. The Administrative Office of Pennsylvania Courts shall design and publish the Confidential Information Form.
C. Instead of using the Confidential Information Form, a court of record may adopt a rule or order permitting the filing of any document in two versions, a ''Redacted Version'' and ''Unredacted Version.'' The ''Redacted Version'' shall not include any information set forth in Subsection A, while the ''Unredacted Version'' shall include the information. Redactions must be made in a manner that is visibly evident to the reader. This Subsection is not applicable to filings in a magisterial district court.
D. Parties and their attorneys shall be solely responsible for complying with the provisions of this section and shall certify their compliance to the court. The certification that shall accompany each filing shall be substantially in the following form: ''I certify that this filing complies with the provisions of the Case Record Public Access Policy of the Unified Judicial System of Pennsylvania[: Case Records of the Appellate and Trial Courts] that require filing confidential information and documents differently than non-confidential information and documents.''
E. A court or custodian is not required to review or redact any filed document for compliance with this section. A party's or attorney's failure to comply with this section shall not affect access to case records that are otherwise accessible.
F. If a filed document fails to comply with the requirements of this section, a court of record may, upon motion or its own initiative, with or without a hearing order the filed document sealed, redacted, amended or any combination thereof. A court of record may impose sanctions, including costs necessary to prepare a compliant document for filing in accordance with applicable authority.
G. If a filed document fails to comply with the requirements of this section, a magisterial district court may, upon request or its own initiative, with or without a hearing order the filed document redacted, amended or both.
[G.] H. This section shall apply to all documents for any case filed with a court or custodian on or after the effective date of this policy.
Commentary There is authority requiring information listed in Subsection A to appear on certain documents. For example, Pa.R.C.P. No. 1910.27 provides for inclusion of the plaintiff's and defendant's social security number on a complaint for support.
This section is not applicable to cases that are sealed or exempted from public access pursuant to applicable authority, for example, cases filed under the Juvenile Act that are already protected by 42 Pa.C.S. § 6307, and Pa.Rs.J.C.P. 160 and 1160.
While Pa.R.C.P. No. 1931 is suspended in most judicial districts, the reference to the rule is merely for definitional purposes.
Unless constrained by applicable authority, court personnel and jurists are advised to refrain from inserting confidential information in court-generated case records (e.g., orders, notices) when inclusion of such information is not essential to the resolution of litigation, appropriate to further the establishment of precedent or the development of law, or necessary for administrative purposes. For example, if a court's opinion contains confidential information and, therefore, must be sealed or heavily redacted to avoid release of such information, this could impede the public's access to court records and ability to understand the court's decision.
Whether using a Confidential Information Form or filing a redacted and unredacted version of a document in a court of record, the drafter shall indicate where in the document confidential information has been omitted. For example, the drafter could insert minors' initials in the document, while listing full names on the Confidential Information Form. If more than one child has the same initials, a different moniker should be used (e.g., child one, child two, etc.).
[While Pa.R.C.P. No. 1931 is suspended in most judicial districts, the reference to the rule is merely for definitional purposes.]
The option to file a redacted and unredacted version of a document does not apply to filings in a magisterial district court. Most filings in magisterial district courts are completed on statewide forms designed by the Administrative Office of Pennsylvania Courts. Safeguarding the information set forth in this Section for magisterial district courts is achieved through the use of a Confidential Information Form (see Subsection A) in tandem with other administrative protocols (e.g., instituting a public access copy page to the citation form set).
With regard to Subsection D, the certification of compliance is required whether documents are filed in paper form or via an e-filing system. Moreover, the certification is required on every document filed with a court or custodian regardless of whether the filing contains ''confidential information'' requiring safeguarding under this policy.
With regard to Subsection E, a court or custodian is not required to review or redact documents filed by a party or attorney for compliance with this section. However, such activities are not prohibited.
[Any] With regard to Subsection F any party may make a motion to the court of record to cure any defect(s) in any filed document that does not comport with this section.
With regard to Subsection G, any party may file a request form designed and published by the Administrative Office of Pennsylvania Courts with a magisterial district court when there is an allegation that a filing was made with that court that does not comply with this policy.
Section 8.0. Confidential Documents.
A. Unless required by applicable authority, the following documents are confidential and shall be filed with a court or custodian under a cover sheet designated ''Confidential Document Form'':
1. Financial Source Documents;
2. Minors' educational records;
3. Medical/Psychological records;
4. Children and Youth Services' records;
5. Marital Property Inventory and Pre-Trial Statement as provided in Pa.R.C.P. No. 1920.33;
6. Income and Expense Statement as provided in Pa.R.C.P. No. 1910.27(c); and
7. Agreements between the parties as used in 23 Pa.C.S. § 3105.
This section is not applicable to cases that are sealed or exempted from public access pursuant to applicable authority.
B. The Administrative Office of Pennsylvania Courts shall design and publish the Confidential Document Form.
C. Confidential documents submitted with the Confidential Document Form shall not be accessible to the public, except as ordered by a court. However, the Confidential Document Form or a copy of it shall be accessible to the public.
D. Parties and their attorneys shall be solely responsible for complying with the provisions of this section and shall certify their compliance to the court. The certification that shall accompany each filing shall be substantially in the following form ''I certify that this filing complies with the provisions of the Case Record Public Access Policy of the Unified Judicial System of Pennsylvania[: Case Records of the Appellate and Trial Courts] that require filing confidential information and documents differently than non-confidential information and documents.''
E. A court or custodian is not required to review any filed document for compliance with this section. A party's or attorney's failure to comply with this section shall not affect access to case records that are otherwise accessible.
F. If confidential documents are not submitted with the Confidential Document Form, a court of record may, upon motion or its own initiative, with or without a hearing, order that any such documents be sealed. A court of record may also impose appropriate sanctions for failing to comply with this section.
G. If a filed document fails to comply with the requirements of this section, a magisterial district court may, upon request or its own initiative, with or without a hearing order that any such documents be sealed.
[G.] H. This section shall apply to all documents for any case filed with a court or custodian on or after the effective date of this policy.
Commentary This section is not applicable to cases that are sealed or exempted from public access pursuant to applicable authority, such as Juvenile Act cases pursuant to 42 Pa.C.S. § 6307, and Pa.Rs.J.C.P. 160 and 1160.
Unless constrained by applicable authority, court personnel and jurists are advised to refrain from attaching confidential documents to court-generated case records (e.g., orders, notices) when inclusion of such information is not essential to the resolution of litigation, appropriate to further the establishment of precedent or the development of law, or necessary for administrative purposes. For example, if a court's opinion contains confidential information and, therefore, must be sealed or heavily redacted to avoid release of such information, this could impede the public's access to court records and ability to understand the court's decision.
Examples of ''agreements between the parties'' as used in Subsection (A)(7) include marital settlement agreements, post-nuptial, pre-nuptial, ante-nuptial, marital settlement, and property settlement. See 23 Pa.C.S. § 3105 for more information about agreements between parties.
With regard to Subsection D, the certification of compliance is required whether documents are filed in paper form or via an e-filing system. Moreover, the certification is required on every document filed with a court or custodian regardless of whether the filing contains a ''confidential document'' requiring safeguarding under this policy.
With regard to Subsection E, if the party or party's attorney fails to use a cover sheet designated ''Confidential Document Form'' when filing a document deemed confidential pursuant to this section, the document may be released to the public.
[Any] With regard to Subsection F any party may make a motion to the court of record to cure any defect(s) in any filed document that does not comport with this section.
With regard to Subsection G, any party may file a request form designed and published by the Administrative Office of Pennsylvania Courts with a magisterial district court when there is an allegation that a filing was made with that court that does not comply with this policy.
Section 9.0. Limits on Public Access to Case Records at a Court Facility.
The following information shall not be accessible by the public at a court facility:
A. Case records in proceedings under 20 Pa.C.S. § 711(9), including but not limited to case records with regard to issues concerning recordation of birth and birth records, the alteration, amendment, or modification of such birth records, and the right to obtain a certified copy of the same, except for the docket and any court order or opinion;
B. Case records concerning incapacity proceedings filed pursuant to 20 Pa.C.S. §§ 5501—5555, except for the docket and any final decree adjudicating a person as incapacitated;
C. Any Confidential Information Form or any Unredacted Version of any document as set forth in Section 7.0;
D. Any document filed with a Confidential Document Form as set forth in Section 8.0;
E. Information sealed or protected pursuant to court order;
F. Information to which access is otherwise restricted by federal law, state law, or state court rule; and
G. Information presenting a risk to personal security, personal privacy, or the fair, impartial and orderly administration of justice, as determined by the Court Administrator of Pennsylvania with the approval of the Chief Justice. The Court Administrator shall publish notification of such determinations in the Pennsylvania Bulletin and on the Unified Judicial System's website.
Commentary Unless constrained by applicable authority, court personnel and jurists are advised to refrain from inserting confidential information in or attaching confidential documents to court-generated case records (e.g., orders, notices) when inclusion of such information is not essential to the resolution of litigation, appropriate to further the establishment of precedent or the development of law, or necessary for administrative purposes. For example, if a court's opinion contains confidential information and, therefore, must be sealed or heavily redacted to avoid release of such information, this could impede the public's access to court records and ability to understand the court's decision.
With respect to Subsection F, Pennsylvania Rule of Appellate Procedure 104(a), Pa.R.A.P. 104(a), provides that the appellate courts may make and amend rules of court governing their practice. The Administrative Office of Pennsylvania Courts shall from time to time publish a list of applicable authorities that restrict public access to court records or information. This list shall be published on the Unified Judicial System's website and in the Pennsylvania Bulletin. In addition, all custodians shall post this list in their respective court facilities in areas accessible to the public and on the custodians' websites.
With respect to Subsection G, the Administrative Office of Pennsylvania Courts shall include any such determinations in the list of applicable authorities referenced above. The same provision appears in [existing statewide public access policies adopted by the Supreme Court:] the Electronic Case Record Public Access Policy of the Unified Judicial System of Pennsylvania [and Public Access Policy of the Unified Judicial System of Pennsylvania: Official Case Records of the Magisterial District Courts]. The provision is intended to be a safety valve to address a future, extraordinary, unknown issue of statewide importance that might escape timely redress otherwise. It cannot be used by parties or courts in an individual case.
Section 10.0. Limits on Remote Access to Case Records.
A. The following information shall not be remotely accessible by the public:
1. The information set forth in Section 9.0;
2. In criminal cases, information that either specifically identifies or from which the identity of jurors, witnesses (other than expert witnesses), or victims could be ascertained, including names, addresses and phone numbers;
3. Transcripts lodged of record, excepting portions of transcripts when attached to a document filed with the court;
4. In Forma Pauperis petitions;
5. Case records in family court actions as defined in Pa.R.C.P. No. 1931(a), except for dockets, court orders and opinions;
6. Case records in actions governed by the Decedents, Estates and Fiduciaries Code, Adult Protective Services Act and the Older Adult Protective Services Act, except for dockets, court orders and opinions; and
7. Original and reproduced records filed in the Supreme Court, Superior Court or Commonwealth Court as set forth in Pa.R.A.P. 1921, 1951, 2151, 2152, and 2156.
B. With respect to Subsections A(5) and A(6), unless otherwise restricted pursuant to applicable authority, dockets available remotely shall contain only the following information:
1. A party's name;
2. The city, state, and ZIP code of a party's address;
3. Counsel of record's name and address;
4. Docket number;
5. Docket entries indicating generally what actions have been taken or are scheduled in a case;
6. Court orders and opinions;
7. Filing date of the case; and
8. Case type.
C. Case records remotely accessible by the public prior to the effective date of this policy shall be exempt from this section.
Commentary Remote access to the electronic case record information residing in the Pennsylvania Appellate Court Case Management System (PACMS), the Common Pleas Case Management System (CPCMS) and the Magisterial District Judges System (MDJS) is provided via web dockets, available on https://ujsportal.pacourts.us/, and is governed by the Electronic Case Record Public Access Policy of the Unified Judicial System of Pennsylvania.
Depending upon individual court resources, some courts have posted online docket information concerning civil matters. If a court elects to post online docket information concerning family court actions and actions governed by the Decedents, Estates and Fiduciaries Code, Adult Protective Services Act and the Older Adult Protective Services Act, the docket may only include the information set forth in Subsection B. This information will provide the public with an overview of the case, its proceedings and other pertinent details, including the court's decision. Release of such information will enhance the public's trust and confidence in the courts by increasing awareness of the procedures utilized to adjudicate the claims before the courts as well as the material relied upon in reaching determinations. This provision does not impact what information is maintained on the docket available at the court facility.
Access to portions of transcripts when attached to a document filed with the court in family court actions is governed by Subsection A(5). While Pa.R.C.P. No. 1931 is suspended in most judicial districts, the reference to the rule is merely for definitional purposes.
Section 11.0. Correcting Clerical Errors in Case Records.
A. A party, or the party's attorney, seeking to correct a clerical error in a case record may submit a written request for correction.
1. A request to correct a clerical error in a case record of the Supreme Court, Superior Court or Commonwealth Court shall be submitted to the prothonotary of the proper appellate court.
2. A request to correct a clerical error in a case record of a court of common pleas [or], the Philadelphia Municipal Court, or a magisterial district court shall be submitted to the applicable custodian.
B. The request shall be made on a form designed and published by the Administrative Office of Pennsylvania Courts.
C. The requestor shall specifically set forth on the request form the information that is alleged to be a clerical error and shall provide sufficient facts, including supporting documentation, that corroborate the requestor's allegation that the information in question is in error.
D. The requestor shall provide copies of the request to all parties to the case.
E. Within 10 business days of receipt of a request, the custodian shall respond in writing to the requestor and all parties to the case in one of the following manners:
1. The request does not contain sufficient information and facts to determine what information is alleged to be in error, and no further action will be taken on the request.
2. The request does not concern a case record that is covered by this policy, and no further action will be taken on the request.
3. A clerical error does exist in the case record and the information in question has been corrected.
4. A clerical error does not exist in the case record.
5. The request has been received and an additional period not exceeding 30 business days is necessary to complete a review of the request.
F. A requestor may seek review of the custodian's response under Subsections E(1)—(4) within 10 business days of the mailing date of the response.
1. The request for review shall be submitted on a form that is designed and published by the Administrative Office of Pennsylvania Courts.
2. The request shall be reviewed by the judge(s) who presided over the case. However, if the request for review concerns a magisterial district court's decision, it shall be reviewed by the president judge or his/her designee.
Commentary Case records are as susceptible to clerical errors and omissions as any other public record. The power of the court to correct errors in its own records is inherent. E.g., Jackson v. Hendrick, 746 A.2d 574 (Pa. 2000). It is important to emphasize that this section does not provide a party who is dissatisfied with a court's decision, ruling or judgment a new avenue to appeal the same by merely alleging there is an error in the court's decision, ruling or judgment. Rather, this section permits a party to ''fix'' information that appears in a case record which is not, for one reason or another, correct.
Particularly in the context of Internet publication of court records, a streamlined process is appropriate for addressing clerical errors to allow for prompt resolution of oversights and omissions. For example, to the extent that a docket in a court's case management system incorrectly reflects a court's order, or a scanning error occurred with regard to an uploaded document, such clerical inaccuracies may be promptly corrected by the appropriate court staff, upon notification, without a court order. Since 2007, the Electronic Case Record Public Access Policy of the Unified Judicial System of Pennsylvania has provided a similar procedure for any errors maintained on the web docket sheets of the PACMS, CPCMS and MDJS. The procedure has successfully addressed clerical errors on docket entries in a timely and administratively simple manner.
A party or party's attorney is not required to utilize the procedures set forth in this section before making a formal motion for correction of a case record in the first instance. Alleged inaccuracies in orders and judgments themselves must be brought to the attention of the court in accordance with existing procedures.
This section is not intended to provide relief for a party's or attorney's failure to comply with Sections 7.0 and 8.0 of this policy. Sections 7.0 and 8.0 already provide for remedial action in the event that non-compliance occurs.
With respect to this section, a custodian includes, but is not limited to, the county prothonotaries, clerks of orphans' court, [and] clerks of the court, and magisterial district judges.
A log of all corrections made pursuant to this section may be maintained by the custodian, so that there is a record if an objection is made in the future. Such a log should remain confidential. It is suggested that custodians include a registry entry on the case docket when a request is received and a response is issued.
Section 12.0. Continuous Availability of Policy.
A copy of this policy shall be continuously available for public inspection in every court and custodian's office and posted on the Unified Judicial System's website.
EXPLANATORY REPORT
Case Record Public Access Policy of the Unified Judicial System of Pennsylvania[: Case Records of the Appellate and Trial Courts] General Introduction
Recognizing the importance of the public's access to the courts and with the Supreme Court's approval, the Administrative Office of Pennsylvania Courts (AOPC) has developed statewide policies governing access to court records. Protocols have been implemented for access to electronic case records in the Judiciary's statewide case management systems, magisterial district court case records, and financial records of the Unified Judicial System (UJS). In 2013, the AOPC embarked on the next phase of policy development designed to address access to case records of the trial and appellate courts.
This latest effort is necessitated by the confluence of several factors. The proliferation of e-filing systems and related decisions to post (or not post) case records online (as part of document imaging or e-filing systems) on a county-by-county basis has resulted in disjointed accessibility to the UJS's trial court case records. A county may post all divorce and custody records online for viewing, perhaps for free, and a neighboring county may not. Online posting of sensitive information contained in case records, such as social security numbers, currently depends upon geography. Surveys conducted by the AOPC also revealed the treatment of sensitive information contained in paper case records maintained by the filing offices varies widely. For example, whether a social security number is available to a member of the public who wishes to view the records of a particular case in a filing office depends upon local practices.
The implementation of e-filing in Pennsylvania's appellate courts and future initiatives at other court levels is also a catalyst for policy development. While appellate court opinions, orders and dockets have been online via the UJS's website for over a decade, the e-filing of appellate briefs and related legal papers raises basic questions that should be considered when a court undertakes such a project, for instance: What sensitive information must be redacted? Who is responsible for ensuring the appropriate information is redacted?
At the state and local level, the Judiciary is moving forward into the digital age, and it clearly needs to give thoughtful consideration to its systems and procedures to ensure equal access to the UJS's trial and appellate case records. Disparate filing and access protocols certainly impede the statewide practice of law in the Commonwealth. Litigants and third parties, some of whom are unrepresented or are not voluntary participants in the judicial process, may be left in the dark as to whether their private, personal identifiers and intimate details of their lives will be released (online) for public viewing.
Government and the private sector collect extensive amounts of personal data concerning individuals' finances, unique identifiers, medical history and so on. Many of these types of data are relevant to the cases that are before the courts for decision, and some data is provided in court filings even though irrelevant to the matter before the court. Therefore, like other branches of government and the private sector, the courts are constantly considering issues regarding the need for openness and transparency and the concern for personal privacy and security.
With regard to the courts, however, the constitutional and common law presumption of openness has to be carefully weighed against relevant practical, administrative considerations when crafting solutions to avert breaches of privacy and security. Striking the right balance is not an easy task.
The public's right to access court proceedings and records is grounded in the First and Sixth Amendments of the U.S. Constitution, Article I §§ 7, 9, and 11 of the Pennsylvania Constitution, and the common law. While there is overlap between the common law and constitutional analyses, there is a distinction between the two. Specifically, the constitutional provisions provide a greater right of access than the common law.1 However, these constitutional and common law rights are not absolute and may be qualified by overriding interests. A more extensive discussion of the right to access is contained in the Explanatory Report of the Electronic Case Record Public Access Policy of the Unified Judicial System of Pennsylvania.2
Therefore, with the approval of the Supreme Court, the Court Administrator of Pennsylvania convened a working group to study and develop a proposed policy for public comment. Under the experienced and dedicated leadership of Commonwealth Court Judge Reneé ]Cohn Jubelirer and Montgomery County Court of Common Pleas Judge Lois E. Murphy, the working group undertook its charge with an open mind and an aim to appropriately balance the competing interests at hand. The group consisted of judges, appellate court filing office personnel, local court personnel, two Prothonotaries/Clerks of Courts, one Register of Wills/Clerk of Orphans' Court, and representatives from the Pennsylvania Bar Association and the rules committees of the Supreme Court, as well as AOPC staff.
Before developing a proposed policy, the working group studied and discussed the different types of records pertaining to criminal, domestic relations, civil, juvenile, orphans' court and appellate matters filed in the courts. Tackling each case type individually, the working group considered existing legal restrictions and other jurisdictions' access policies on the release of data and documents. In formulating whether information and documents should be considered confidential, the group also determined how access would be limited. There are categories of information that are completely restricted, such as social security numbers, and categories that are restricted from online viewing by the public but remain available for public inspection at a court facility, such as original and reproduced records filed in the appellate courts.
The working group published its proposal for a 60-day public comment period3 and received thirty-two submissions. The comments reflected diverse, and sometimes conflicting, viewpoints, which helped the working group define the issues and find solutions. In doing so, the working group endeavored to find as much ''common ground'' as it could in reviewing and addressing the various comments.
In crafting its proposal, the group was guided at all times by the long-standing tradition of access to court records and the important interests it serves, as follows:
to assure the public that justice is done even-handedly and fairly; to discourage perjury and the misconduct of participants; to prevent decisions based on secret bias or partiality; to prevent individuals from feeling that the law should be taken into the hands of private citizens; to satisfy the natural desire to see justice done; to provide for community catharsis; to promote public confidence in government and assurance that the system of judicial remedy does in fact work; to promote the stability of government by allowing access to its workings, thus assuring citizens that government and the courts are worthy of their continued loyalty and support; to promote an understanding of our system of government and courts. Commonwealth v. Fenstermaker, 530 A.2d 414, 417 (Pa. 1987) (citing Commonwealth v. Contankos, 453 A.2d 578, 579-80 (Pa. 1982)).However, the group also recognized that transparency of judicial records and proceedings must be balanced with other considerations in this Internet age. The group attempted to strike the appropriate balance between access and interests involving the administration of justice, personal privacy and security—particularly with regard to online records. Also essential to the group's evaluation were practical considerations, such as the methods of redaction to be implemented and identification of various ''best practices'' that should be instituted statewide.
The working group provides the following relevant commentary for the sections of the policy.
Section 1
The definitions incorporate elements of those found in existing UJS public access policies and other authorities.
This policy governs access to (1) official paper case records of appellate courts, courts of common pleas, [and] Philadelphia Municipal Court, and magisterial district courts, (2) images of scanned or e-filed docu-ments residing in the three statewide case management systems, (3) images of scanned or e-filed documents residing in the case management systems of the judicial districts, and (4) case record information posted online by judicial districts via their own ''local'' case management systems. This approach ensures a more equitable and systematic approach to the case records filed in and maintained for the trial and appellate courts.
It is important to note how this policy intersects with [existing UJS policies, namely] the Electronic Case Record Public Access Policy of the Unified Judicial System of Pennsylvania (hereinafter referred to as ''Electronic Policy'') [and MDC Paper Policy] as well as the recently rescinded Public Access Policy of the Unified Judicial System of Pennsylvania: Official Case Records of the Magisterial District Courts (hereinafter referred to as ''MDC Paper Policy''). The Electronic Policy governs access to the electronic case record information, excluding images of scanned documents, residing in the three statewide case management systems: Pennsylvania Appellate Courts Case Management System, Common Pleas Case Management System and the Magisterial District Judge System. Put simply, the Electronic Policy governs what information resides on the public web docket sheets accessible via the UJS web portal or is released to a member of the public requesting electronic case record information from one of the systems.
[The MDC Paper Policy governs access to the paper case records on file in a magisterial district courts.]
The MDC Paper Policy had governed access to the paper case records on file in a magisterial district court, but was rescinded when this Policy was amended in 2018 to govern public access to those records.
The definition of ''financial source document'' is derived from the definition of ''sealed financial source documents'' used in Minnesota (Minn.G.R.Prac. Rule 11.01) and Washington (WA.R.Gen. Rule 22(b)).
Section 2
This section's provisions are similar to those contained in the rescinded MDC Paper Policy, which [have] had been successfully implemented.
Section 4
Requestors may be unable to complete a written request, if required by a court. In such circumstances, access should not be denied but may be delayed until the custodian or designated staff is available to assist the requestor. If the request is granted, it may be necessary for the custodian or designated staff to sit with the requestor and monitor the use of the file to ensure its integrity. This is consistent with the responsibility placed upon the custodian and designated staff for the security, possession, custody and control of case records in Section 2.0(B). Such a practice is also consistent with the requirement that addressing requests for access cannot impede the administration of justice or the orderly operation of a court, pursuant to Section 2.0(C).
This section's provisions are similar to those contained in the rescinded MDC Paper Policy.
Section 5
While implementing the provisions of this policy should not unduly burden the courts and custodians or impinge upon the delivery of justice, it is reasonable for the public to expect that courts and custodians shall respond to requests for access in a consistent fashion. This section brings uniformity, in general, as to when and how courts and custodians must respond to requests. [Similar sections are found in the Electronic Policy and MDC Paper Policy.] Both the Electronic Policy and the rescinded MDC Paper Policy contained similar sections.
Section 6
Judicial districts have adopted different approaches to imposition of fees, especially with regard to remote access to court records. Some impose a fee for providing remote access because the costs associated with building and maintaining such systems are often substantial. Given that remote access is a value-added service, not a requirement, it is thought that those who avail themselves of this service should be charged for the convenience of maintaining these systems.
Others do not impose fees for remote access because providing this service reduces the ''foot traffic'' in the filing offices for public access requests. This, in turn, frees staff to attend to other business matters, resulting in a financial benefit by reducing costs associated with dealing with the requests over the counter. The AOPC has provided ''free'' online access to public web docket sheets for cases filed in the appellate courts, criminal divisions of the courts of common pleas and Philadelphia Municipal Court, as well as the magisterial district courts for years. In 2014, 59 million of those web dockets sheets were accessed online.
It is interesting to note that the two largest judicial districts in the Commonwealth are at opposite ends of the spectrum (i.e., one has posted virtually all dockets and documents for free, and the other posts some dockets for free but not documents). While the working group recognizes that other factors play into these determinations (such as, technological capabilities, statutorily mandated fees), judicial districts should ensure that fees do not become a barrier to public access. Completion of statewide case management systems in all levels of court will likely bring about standardization in remote access to case records.
The working group notes that this section's provisions are similar to those contained in the rescinded MDC Paper Policy.
Section 7
The concept of restricting access to particular, sensitive identifiers is not novel. The Electronic Policy and the rescinded MDC Paper Policy restrict access to social security numbers and financial account numbers, for example. The federal courts, and many state court systems, have restricted access to the types of identifiers that are listed in Section 7.0.
The Electronic Policy and the rescinded MDC Paper Policy provide that access to social security numbers is shielded from release. Moreover, there are scores of authorities at both the federal and state level that protect the release of this information. While some of these authorities are not applicable to court records, they require access to this information in government records be limited or wholly restricted. For example: 65 P.S. § 67.708(b)(6)(i)(A), 74 P.S. § 201, 42 U.S.C.A. § 405(c)(2)(C)(viii), F.R.Civ.P.5.2(a)(1), F.R.Crim.P. 49.1(a)(1), Alaska (AK R Admin Rule 37.8(a)(3)), Arizona (AZ ST S CT Rule 123(c)(3)), Arkansas (Sup. Ct. Admin. Order 19(VII)(a)(4)), Florida (FL ST J ADMIN Rule 2.420(d)(1)(B)(iii)), Idaho (ID R Admin Rule 32(e)(2)), Indiana (Ind. St. Admin. Rule 9(G)(1)(d)), Maryland (MD. Rules 16-1007), Michigan (Administrative Order 2006-2), Minnesota (Minn.Gen.R.Prac. Rule 11.01(a)), Mississippi (Administrative Order dated August 27, 2008 paragraph 8), Nebraska (Neb Ct R § 1-808(a) and Neb. Rev. Stat § 84-712.05(17)), New Jersey (NJ R GEN APPLICATION Rule 1:38-7(a)), North Dakota (N.D.R.Ct. Rule 3.4(a)(1) and A.R. 41(5)(B)(10)(a)), Ohio (OH ST Sup Rules 44(h) and 45(d)), South Dakota (SDCL § 15-15A-8), Texas (TX ST J ADMIN Rule 12.5(d)), Utah (UT R J ADMIN Rules 4-202.02(4)(i) and 4-202-03(3)), Vermont (VT R PUB ACC CT REC § 6(b)(29)), Washington (WA.R.Gen. Rule 31(3)(1)(a)) and West Virginia (WV R RAP Rule 40(e)(3)).
With regard to financial account numbers, the Electronic Policy and the rescinded MDC Paper Policy provide that this information is not accessible. Many other jurisdictions have taken a similar approach. For example: F.R.Civ.P. 5.2(a)(1), F.R.Crim.P. 49.1(a)(1), Alaska (AK R Admin Rule 37.8(a)(5)), Arizona (AZ ST S CT Rule 123(c)(3)), Arkansas (Sup. Ct. Admin. Order 19(VII)(a)(4)), Florida (FL ST J ADMIN Rule 2.420(d)(1)(B)(iii)), Idaho (ID R Admin Rule 32(e)(2)), Indiana (Ind. St. Admin. Rule 9(G)(1)(f)), Minnesota (Minn.Gen.R.Prac. Rule 11.01(a)), Nebraska (Neb Ct R § 1-808(a) and Neb. Rev. Stat § 84-712.05(17)), New Jersey (NJ R GEN APPLICATION Rule 1:38-7(a)), North Dakota (N.D.R.Ct. Rule 3.4(a)(1) and A.R. 41(5)(B)(10)(a)), Ohio (OH ST Sup Rules 44(h) and 45(d)), South Dakota (SDCL § 15-15A-8), Vermont (VT R PUB ACC CT REC § 6(b)(29)), Washington (WA.R.Gen. Rule 31(3)(1)(b)) and West Virginia (WV R RAP Rule 40(e)(4)).
Concerning driver license numbers, the Electronic Policy provides that driver license numbers should be protected. Moreover, there are many authorities at both the federal and state level that protect the release of this information. While some of these authorities are not applicable to court records, they require access to this information in government records be limited or wholly restricted. For example: 65 P.S. § 67.708(b)(6)(i)(A), 75 Pa.C.S. § 6114, 18 U.S.C. §§ 2721—2725, Alaska (AK R Admin Rule 37.8(a)(4)), Idaho (ID R Admin Rule 32(e)(2)), New Jersey (NJ R GEN APPLICATION Rule 1:38-7(a)), Utah (UT R J ADMIN Rules 4-202.02(4)(i) and 4-202-03(3)), Vermont (VT R PUB ACC CT REC § 6(b)(29)) and Washington (WA.R.Gen. Rule 31(3)(1)(c)).
State Identification Numbers (''SID'') have been defined as ''[a] unique number assigned to each individual whose fingerprints are placed into the Central Repository of the State Police. The SID is used to track individuals for crimes which they commit, no matter how many subsequent fingerprint cards are submitted.'' See 37 Pa. Code § 58.1. The Electronic Policy prohibits the release of SID. Furthermore, in Warrington Crew v. Pa. Dept. of Corrections, (Pa. Cmwlth., No. 1006 C.D. 2010, filed Nov. 19, 2010)4 , the Commonwealth Court upheld a ruling by the Office of Open Records that a SID number is exempt from disclosure through a right-to-know request because such numbers qualify as a confidential personal identification number.
Other jurisdictions provide similar protections to minors' names, dates of births, or both. For example: F.R.Civ.P. 5.2(a)(1), F.R.Crim.P. 49.1(a)(1), Alaska (AK R Admin Rule 37.8(a)(6)), North Dakota (N.D.R.Ct. Rule 3.4(a)(3) and A.R.41(5)(B)(10)(c)), Utah (UT R J ADMIN Rules 4-202.02(4)(l) and 4-202-03(3)) and West Virginia (WV R RAP Rule 40(e)(1)).
With regard to abuse victims' address and other contact information, Pennsylvania through the enactment of various statutes has recognized the privacy and security needs of victims of abuse. For example, Pennsylvania's Domestic and Sexual Violence Victim Address Confidentiality Act (23 Pa.C.S. §§ 6701—6713) provides a mechanism whereby victims of domestic and sexual violence can shield their physical address (even in court documents) and hence protect their ability to remain free from abuse. The Pennsylvania Right To Know Law (65 P.S. §§ 67.101—67.1304) recognizes the potential risk of harm which can be caused by the disclosure by the government of certain personal information. For example, 65 P.S. § 67.708(b)(1)(ii) prohibits the disclosure that ''would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.'' Moreover, 23 Pa.C.S. § 5336(b) prohibits the disclosure of the address of a victim of abuse in a custody matter to the other parent or party. 23 Pa.C.S. § 4305(a)(10)(ii) and (iii) provides that the domestic relations section shall have the power and duty to:
''implement safeguards applicable to all confidential information received by the domestic relations section in order to protect the privacy rights of the parties, including: prohibitions against the release of information on the whereabouts of one party or the child to another party against whom a protective order with respect to the former party or the child has been entered; and prohibitions against the release of information on the whereabouts of one party or the child to another person if the domestic relations section has reason to believe that the release of the information may result in the physical or emotional harm to the party or the child.''In addition, other jurisdictions have taken a measure to protect similarly situated individuals, such as: Alaska (AK R Admin Rule 37.8(a)(2)), Florida (FL ST J ADMIN Rule 2.420(d)(1)(B)(iii)), Indiana (Ind. St. Admin. Rule 9(G)(1)(e)(i)), New Jersey (NJ R GEN APPLICATION Rule 1:38-3(c)(12)), and Utah (UT R J ADMIN Rules 4-202.02(8)(E)(i) and 4-202-03(7)).
To maintain the confidentiality of the information listed in subsection (A), parties and their attorneys can set forth the listed information on a Confidential Information Form, designed and published by the AOPC. This is akin to the procedure set forth in the rescinded MDC Paper Policy[; the Confidential Information Form used by that policy is posted on the UJS's website at www.pacourts.us].
Alternatively, parties and their attorneys can file two versions of each document with the court/custodian—one with sensitive information redacted (''redacted copy') and the other with no information redacted (''unredacted copy''). The redacted copy shall omit any information not accessible under this policy in a visibly evident manner, and be available for public inspection. The unredacted copy shall not be accessible by the public. At least one other jurisdiction has implemented a similar approach. See WA.R.Gen. R. 22(e)(2) (Washington). Some contend that a redacted copy of a document will be more readable than an unredacted copy containing monikers as placeholders for sensitive information not included in the document. This approach was also identified as a more amenable solution given the current design of the statewide e-filing initiative.
This option is not applicable to filings in a magisterial district court, rather filers must use the Confidential Information Form as provided in subsection (A). However, most of the forms that are found within the case files of a magisterial district court are statewide forms that are generated from the Magisterial District Judge System (a statewide case management system for these courts). The protection of confidential information captured on current MDJS forms requires a multi-faceted approach that takes into account how each form that contains such information is used. For example, AOPC has removed or suppressed social security numbers and operator license numbers from various forms when such information is extraneous to the court's adjudication of the case or the collection of the information is not otherwise required. In some instances, the filer will be responsible for placing the confidential information on the Confidential Information Form.
While a court or custodian is not required to review any pleading, document, or other legal paper for compliance with this section, such activity is not prohibited. If a court or custodian wishes to accept the burden of reviewing such documents and redacting the same, such a process must be applied uniformly across all documents or cases. This provision, however, does not alter or expand upon existing legal authority limiting a custodian's authority to reject a document for filing. See Nagy v. Best Home Services, Inc., 829 A.2d 1166 (Pa. Super. 2003).
Courts that permit e-filing should consider the development of a compliance ''checkbox'' whereby e-filers could indicate their compliance with this policy.
This section only applies to documents filed with a court or custodian on or after the effective date of this policy. There will be a period of transition prior to full implementation of this policy; that is, some documents filed with a court or custodian prior to the effective date of this policy will contain information that the policy restricts from public access. To expect full and complete implementation of this policy by applying it retroactively to those documents filed prior to the effective day of this policy is impractical and burdensome.
However, it is important to remember with regard to pre-policy records, a party or attorney always has the option to file a motion with [the court] a court of record to seal, in whole or part, a document or file. This includes the ability to request sealing and/or redaction of only some information that resides on a document in the court file (e.g., a social security number on a document).
Section 8
The protocol of submitting to a court or custodian certain documents under a cover sheet so that the documents are not accessible to the public has been instituted in other jurisdictions, such as Minnesota (Minn.G.R.Prac. Rule 11.03), South Dakota (SDCL § 15-15A-8), and Washington (WA.R.Gen. Rule 22(b)(8) and (g)). One manner in which to implement this protocol (e.g., the need to separate a confidential document within a file accessible to the public) is to maintain a confidential electronic folder or confidential documents file within the case file, thus ensuring that the file folder with the non-public information can be easily separated from the public case file, when access is requested.
Concerning financial source documents, other jurisdictions have similar provisions regarding such documents including Minnesota (Minn.G.R.Prac. Rule 11.03), South Dakota (SDCL § 15-15A-8), and Washington (WA.R.Gen. Rule 22(b)(8) and (g)).
Similar protocols with regard to minors' education records are found in other jurisdictions, such as Nebraska (Neb Ct R § 1-808(a) and Neb. Rev. Stat § 84-712.05(1)) and Wyoming (WY R Gov Access Ct Rule 6(a) and WY ST § 16-4-203(d)(viii)).
With regard to medical records, other jurisdictions have similar provisions including Indiana (Ind. St. Admin. Rule 9(G)(1)(b)(xi)), Maryland (MD. Rules 16-1006(i)), Nebraska (Neb Ct R § 1-808(a) and Neb. Rev. Stat § 84-712.05(2)), Utah (UT R J ADMIN Rules 4-202.02(4)(k) and 4-202-03(3)), Vermont (VT R PUB ACC CT REC § 6(b)(17)), West Virginia (WV R RAP Rule 40(e)(1)) and Wyoming (WY R Gov Access Ct Rule 6(t)).
Section 7111 of the Mental Health Procedures Act, 50 P.S. § 7111, provides that all documentation concerning an individual's mental health treatment is to be kept confidential and may not be released or disclosed to anyone, absent the patient's written consent, with certain exceptions including a court's review in the course of legal proceedings authorized under the Mental Health Procedures Act (50 P.S. § 7101). While it is unclear if this provision is applicable to the public accessing an individual's mental health treatment records in the court's possession, the working group believes this provision provides guidance on the subject. Thus, such records should not be available to the public except pursuant to a court order. See Zane v. Friends Hospital, 575 Pa. 236, 836 A.2d 25 (2003). Other jurisdictions have similar protocols, such as Maryland (MD. Rules 16-1006(i)), New Mexico (NMRA Rule 1-079(c)(5)), Utah (UT R J ADMIN Rules 4-202.02(4)(k) and 4-202-03(3)), Vermont (VT R PUB ACC CT REC § 6(b)(17)) and Wyoming (WY R Gov Access Ct Rule 6(p)).
Children and Youth Services' records introduced in juvenile dependency or delinquency matters are not open to public inspection. See 42 Pa.C.S. § 6307 as well as Pa.Rs.J.C.P. 160 and 1160. Introduction of such records in a different proceeding (e.g., a custody matter) should not change the confidentiality of these records; thus, the records should be treated similarly. These records are treated similarly by other jurisdictions, such as Florida (FL ST J ADMIN Rule 2.420(d)(1)(B)(i)), Indiana (Ind. St. Admin. Rule 9(G)(1)(b)(iii)) and New Jersey (NJ R GEN APPLICATION Rule 1:38-3(d)(12) and (15)).
The extent of financially sensitive information required by Pa.R.C.P. No. 1910.27(c) and 1920.33 that must be listed on income and expense statements, marital property inventories and pre-trial statements rivals information contained in a financial source document. Therefore, these documents should also be treated as confidential. Vermont has a similar protocol (VT R PUB ACC CT REC § 6(b)(33) and 15 V.S.A. § 662).
Courts that permit e-filing should consider the development of a compliance ''checkbox'' whereby e-filers could indicate their compliance with this policy.
This section only applies to documents filed with a court or custodian on or after the effective date of this policy. There will be a period of transition prior to full implementation of this policy; that is, some documents filed with a court or custodian prior to the effective date of this policy will contain information that the policy restricts from public access. To expect full and complete implementation of this policy by applying it retroactively to those documents filed prior to the effective day of this policy is impractical and burdensome.
However, it is important to remember with regard to pre-policy records, a party or attorney always has the option to file a motion with [the court] a court of record to seal, in whole or part, a document or file. This includes the ability to request sealing and/or redaction of only some information that resides on a document in the court file (e.g., a social security number on a document).
Section 9
This section safeguards certain sensitive information that is already protected by existing authority or was deemed to require protection by the working group from access at the court facility. The latter category included two specific types of records: birth records and incapacity proceeding records.
Access to a birth certificate from the Department of Health, particularly an amended birth certificate, such as in an adoption case, is limited pursuant to various statutes. 35 P.S. §§ 450.603, 2915 and 2931. Unrestricted access to records filed in proceedings about birth records could have the unintended effect of circumventing the purposes of the confidentiality provisions of the above statutory framework. Moreover, at least one jurisdiction, Florida (FL ST J ADMIN Rule 2.420(d)(1)(B)(vi)), provides similar protections to these records. However, concerned that the lack of transparency may erode the public's trust and confidence, dockets and any court order, decree or judgment in these cases are exempted by the policy. Releasing the dockets as well as any order, decree or judgment disposing of the case is believed to strike the appropriate balance between access to the court's decision, and hence the public's understanding of the judicial function, and personal privacy.
Given the extent of financial and sensitive information that is provided in order that a court may determine whether a person is incapacitated and, if so, that must subsequently be reported in a guardian's report, these records are not be accessible. Similar provisions are found in many other jurisdictions including: California (Cal. Rules of Court, Rule 2.503(c)(3)), Florida (F.S.A. §§ 744.1076 and 744.3701), Georgia (Ga. Code Ann. § 29-9-18), Idaho (ID. R. Admin. Rule 32), Maryland (MD. Rules 16-1006), New Jersey (NJ R GEN APPLICATION Rule 1:38-3(e)), New Mexico (NMRA Rule 1-079(c)(7)), South Dakota (SDCL § 15-15A-7(3)(m)), Utah (UT R J Admin. Rule 4-202.02(4)(L)(ii)), Washington (WA.R.Gen. Rule 22(e)) and Wyoming (WY R Gov Access Ct Rule 6(g)). For the reasons of transparency, the case docket and any court order, decree or judgment for these cases is exempted pursuant to this policy.
The provisions of Subsection G are consistent with those contained in the Electronic Policy, the rescinded MDC Paper Policy and Rule of Judicial Administration 509. The Judiciary's commitment to the principle of open and accessible case records is reflected in the inclusion of a publication requirement.
Section 10
Any information to which access is limited pursuant to Sections 7, 8 or 9 is also not accessible remotely pursuant to Subsection A(1). As to Subsections A(2) through (A)(7), it is important to note that this information will remain available at the courthouse or court facility where access has been traditionally afforded. There is a difference between maintaining ''public'' records for viewing/copying at the courthouse and ''publishing'' records on the Internet. Thus, there is certain information for which at the present time courthouse access remains the appropriate forum.
Concerning Subsection A(2)'s restriction on remote access to information that identifies jurors, witnesses, and victims in criminal cases, similar provision exist in the Electronic Policy and have been implemented by other jurisdictions, including Alaska (AK R ADMIN Rule 37.8(a)(1) and (2)), Indiana (Ind. St. Admin. Rule 9(G)(1)(e)), Mississippi (Administrative Order dated August 27, 2008 paragraph 8), Nebraska (NE R CT § 1-808(b)(3)), Texas (TX ST J ADMIN Rule 12.5(d)) and Utah (UT R J ADMIN Rules 4-202.02(8)(e) and 4-202-03(7)).
As pertains to Subsection A(5), in considering family court records (i.e., divorce, custody, and support), individual courts have implemented protocols to shield some of these records from access. Sensitive to these concerns, prohibiting online posting of any family court records (save for a docket, court orders and opinions), along with the requirements that certain information and documents filed with the court or custodian be restricted from access via the use of a Confidential Information Form, redacted filings or a Confidential Document Form, removes a significant amount of the personal, sensitive information from access, while allowing public access to ensure accountability and transparency of the judicial system.
With regard to Subsection A(6), New Mexico has a similar protocol protecting Older Adult Protective Services Act matters (NMRA Rule 1-079(c)(4)). For the reasons expressed above, remote access should be afforded to dockets, court orders and opinions in these cases, to the extent that the judicial districts have developed systems and procedures that facilitate such access.
While case records remotely accessible to the public prior to the effective date of this policy may remain online in unredacted form, judicial districts are not prohibited from taking steps to safeguard sensitive case records designated by this section. To expect full and complete implementation of the policy by applying it retroactively to records remotely accessible prior to the effective date of this policy is impractical and burdensome.
However, it is important to remember with regard to pre-policy records, a party or attorney always has the option to file a motion with the court to seal, in whole or part, a document or file. This includes the ability to request sealing and/or redaction of only some information that resides on a document in the court file (e.g., a social security number on a document).
It is essential that courts and custodians in designing systems, such as those for document imaging, e-filing, or both consider the requirements of this policy and ensure such systems are in compliance. This is imperative as the Judiciary moves toward statewide e-filing for all levels of courts.
As for systems currently in existence, the policy may require changes to current protocols and processes.
Section 11
A similar provision is included in the Electronic Policy. This policy delineates a procedure by which an individual may correct a clerical error that appears in a case record accessible remotely. As noted in the Explanatory Report to the Electronic Policy, these provisions borrow heavily from the correction provisions in the Criminal History Record Information Act. For the same reasons outlined in the Explanatory Report, a similar protocol was included in this policy.
Best Practices
The following are various ''best practices'' that should be considered by the courts, parties and their attorneys to promote the successful implementation of this policy.
1. The Judiciary should remain cognizant of this policy in the development of e-filing and case management systems, procedures and forms. The following ''best practices'' should be considered as courts develop systems for e-filing:
a. Access to the courts should be promoted by the e-filing processes;
b. Court control over its own records should be preserved;
c. Systems should have consistent functionality, compatible protocols and rules to facilitate statewide practice;
d. Processes for pro se litigants should be defined to provide equal and secure access to the system;
e. Issues involving public access to e-documents, and the sensitive data that may be contained therein, should be fully studied before the e-filing system is developed (e.g., separate e-filing of exhibits from other documents);
f. Payment of any required filing fees should be accomplished via electronic methods;
g. Bi-directional exchange of data should be facilitated between e-filing and case management systems; and
h. Maximum flexibility in the design of a system should be sought to accommodate future evolutions of technology.
2. Compliance with this policy and the Judiciary's commitment to open records may be assisted by various technological and administrative solutions, such as:
a. Implementation of redaction and ''optical character recognition'' software may assist parties and their attorneys in complying with the policy. Some judicial districts also employ redaction software to protect sensitive data as a ''best practice.''
b. Due consideration and routine review by custodians should be given to the standards for record retention as applied to those records in paper form and electronic form.
[Pa.B. Doc. No. 18-561. Filed for public inspection April 13, 2018, 9:00 a.m.] _______
1 See Commonwealth v. Long, 922 A.2d 892 (Pa. 2007).
2 Explanatory Report is found at: http://www.pacourts.us/assets/files/page-381/file-833.pdf?cb=1413983484884.
3 http://www.pabulletin.com/secure/data/vol45/45-6/222.html.
4 Pursuant to Section 414(a) of the Commonwealth Court's Internal Operating Procedures, an unreported panel decision issued by the Court after January 15, 2008 may be cited ''for its persuasive value, but not as binding precedent.'' 210 Pa. Code § 69.414(a).
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