[48 Pa.B. 2582]
[Saturday, May 5, 2018]

[Continued from previous Web Page]

Victim Information

 The Committee notes that the MDJS policy provides that ''names of juvenile victims of abuse'' shall not be released.¹³⁶ Additionally, it is noted that the CCJ/COSCA Guidelines state that ''parts of the court record, or pieces of information (as opposed to the whole case file) for which there may be a sufficient interest to prohibit public access [include] name, address, telephone number, e-mail, or places of employment of a victim, particularly in a sexual assault case, stalking or domestic violence case. . .''¹³⁷

 Additionally, the Committee notes that several states, such as California,¹³⁸ Florida,¹³⁹ Indiana,¹⁴⁰ Minnesota,¹⁴¹ Massachusetts,¹⁴² as well as the federal government¹⁴³ (concerning victims in protection from abuse cases) have enacted or proposed public access policies or court rules that would prohibit the release of victim information.

 The Committee concluded that although there may be a legitimate public interest in releasing victim information, such as alerting the community as to whom crimes are being committed against and where crimes are being committed, it is outweighed by the interest of protecting the victim. The Committee, therefore, opines that the release of victim information including name, address and other contact information may result in intimidation or harassment of those individuals who are victims of a crime and would cause unjustified invasions of personal privacy as well as present risks to personal security. Thus, the Committee recommends that the MDJS policy provisions restricting the release of victim information should be continued.

Informant Information

 The Committee asserts that information about an informant should not be released in that doing so could put the informant and/or law enforcement personnel who may be working with an informant at risk of harm, as well as possibly impede ongoing criminal investigations. Although the Committee could not find any court policies or rules that would specifically prohibit the release of informant information, the Committee notes that several states, such as Florida,¹⁴⁴ Minnesota,¹⁴⁵ and Massachusetts¹⁴⁶ have enacted or proposed public access policies or court rules that would prohibit the release of informant information, if the informant is a witness on the case. Additionally, the CCJ/COSCA Guidelines provide that parts of the court record, or pieces of information (as opposed to the whole case file) for which there may be a sufficient interest to prohibit public access ''[include] name, address, or telephone number of informants in criminal cases.''¹⁴⁷

 The Committee concluded when it balanced all the information outlined above that it was hard pressed to find a legitimate public interest in releasing informant information. The release of this information would be an unjustified invasion of personal privacy as well as present risks to personal security. Thus, the Committee recommends informant information should not be released.

Juror Information

 The Committee notes that the CCJ/COSCA Guidelines state that ''parts of the court record, or pieces of information (as opposed to the whole case file) for which there may be a sufficient interest to prohibit public access [include] names, addresses, or telephone numbers of potential or sworn jurors in a criminal case. . .[and] juror questionnaire information.''¹⁴⁸ In addition, the Committee notes that Rule 630 of the Pennsylvania Rules of Criminal Procedure sets forth that ''[t]he information provided on the juror qualification form shall be confidential'' and further provides that ''[t]he original and any copies of the juror qualification form shall not constitute a public record.''¹⁴⁹

 Rule 632 of the Pennsylvania Rules of Criminal Procedure provides that ''[t]he information provided by the jurors on the questionnaires shall be confidential and limited to use for the purpose of jury selection only. . . .''¹⁵⁰ Rule 632 also sets forth that ''the original and any copies of the juror information questionnaire shall not constitute a public record.''¹⁵¹ Further, it states ''[t]he original questionnaire of all impaneled jurors shall be retained in a sealed file and shall be destroyed upon completion of the juror's service, unless otherwise ordered by the trial judge.''¹⁵² The Rule also provides that ''[t]he original and any copies of questionnaires of all prospective jurors not impaneled or not selected for any trial shall be destroyed upon completion of the jurors' service.''¹⁵³

 In addition, in the case of Commonwealth v. Karl Long,¹⁵⁴ the Superior Court held that there is no constitutional or common law right of access to the names and addresses of jurors. Further, the Court noted that:

''a number of states have enacted legislation with the intent to protect jurors' privacy. New York has adopted legislation to protect the privacy of jurors by keeping empanelled jurors' names and addresses confidential. N.Y. Judiciary Law C § 509(a)(2003); see also Newsday, Inc. v. Sise, 524 N.Y.S.2d 35, 38-89 (N.Y. 1987). Delaware has also enacted juror privacy legislation. Del.Code Ann. Tit. 10 § 4513; also Gannett, 571 A.2d 735 (holding that the media did not have the right to require announcement of juror's names during the highly publicized trial, even though the parties have full access to such information and the proceedings are otherwise open to the public). Indiana legislation provides that the release of names and identifying information of potential jurors is within the discretion of the trial judge. Ind.Code § 2-210(5).''¹⁵⁵

 Moreover, the Committee notes that several states, such as Vermont,¹⁵⁶ Idaho,¹⁵⁷ Maryland,¹⁵⁸ Arizona,¹⁵⁹ Minnesota,¹⁶⁰ and Utah¹⁶¹ have enacted or proposed public access policies or court rules that would prohibit the release of some or all juror information.

 In February 2005, the American Bar Association's House of Delegates approved a series of model jury principles.¹⁶² Principle 7 addresses the need for juror privacy when consistent with the requirements of justice and the public interest. More specifically, principle 7 recommends that juror addresses and phone numbers be kept under seal.¹⁶³

 In Pennsylvania, section 4524 of the Judicial Code provides with respect to the jury selection commission that ''[a] separate list of names and addresses of persons assigned to each jury array shall be prepared and made available for public inspection at the offices of the commission no later than 30 days prior to the first date on which the array is to serve.''

 Therefore, the Committee concluded that existing Pennsylvania legal authority as cited above requires that juror information contained in electronic case records shall not be released to the public. Moreover, the Committee notes that such a result appears to be consistent with the approach taken by other states.

Party's Address

 The Committee notes that the MDJS policy provides that AOPC will not release the addresses of parties.¹⁶⁴ The Committee notes that the CCJ/COSCA Guidelines state that ''additional categories of information to which a state or individual court might also consider restricting general public access include: addresses of litigants in cases. . . .''¹⁶⁵

 In addition, several states and the federal courts¹⁶⁶ have enacted or proposed public access policies or court rules that would prohibit the release of a party address or permit the release of only a partial address. Those states include: Indiana,¹⁶⁷ Minnesota,¹⁶⁸ Massachusetts,¹⁶⁹ Kansas¹⁷⁰ , Kentucky¹⁷¹ and Vermont.¹⁷² In addition, some federal courts have begun releasing only a partial address as well.¹⁷³ Furthermore, the Committee notes that in Sapp Roofing Co. v. Sheet Metal Workers' Int'l¹⁷⁴ and Bargeron v. Dep't of Labor and Indus.,¹⁷⁵ Pennsylvania courts held that a home address falls under the personal security provision of the RTKA and thus should not be released pursuant to a request under the RTKA.

 The Committee was faced with three choices: to release a full address, to release a partial address, or to restrict access to addresses. The Committee asserts that there is a legitimate public interest in releasing a party's address, specifically ensuring that the ''right'' party is matched with the ''right'' case information. However, the Committee is concerned that releasing the entire address would cause an unjustified invasion of personal privacy as well as present a risk to personal security.

 Therefore, when coupled with other identifiers accessible under this Policy, the Committee opines that the release of a partial address (city, state, and zip code only) will facilitate a requestor's need to match the ''right'' party with the ''right'' case while at the same time not raise any significant issues of personal privacy or security. Thus, the Committee recommends the same.

Witness Information

 The Committee notes that the MDJS Policy provides that AOPC will not release the following information about a witness: address, social security number, telephone number, fax number, pager number, driver's license number, SID number or other identifier that would present a risk to the witness' personal security or privacy.¹⁷⁶ In addition, the Committee notes that the CCJ/COSCA Guidelines state that ''parts of the court record, or pieces of information (as opposed to the whole case file) for which there may be a sufficient interest to prohibit public access'' include addresses of witnesses (other than law enforcement personnel) in criminal or domestic violence protective order cases.¹⁷⁷ The Committee also notes that several states have enacted or proposed public access policies or court rules that would prohibit the release of witness information. Those states include: California,¹⁷⁸ Florida,¹⁷⁹ Indiana,¹⁸⁰ Minnesota,¹⁸¹ and Massachusetts.¹⁸²

 The Committee concluded when it balanced all the information outlined above that there may be a legitimate public interest in releasing witness information, specifically that the public's ability to ascertain who testified at a public trial. However, the Committee is convinced that the release of witness information including name, address and other contact information may result in intimidation or harassment of the witnesses and thus would be an unjustified invasion of personal privacy as well as present a risk to personal security. Thus, the Committee recommends that the MDJS policy provisions restricting the release of victim information should be extended to witnesses.

SID Numbers

 A SID number (or a state identification number) is a unique identifying number that is assigned by the Pennsylvania State Police (PSP) providing for specific identification of an individual through analysis of his/her fingerprints. The PSP does not release SID numbers to the public on the basis that SID numbers are criminal history record information, the release of which is controlled by the Criminal History Record Information Act (CHRIA).¹⁸³ Moreover, the MDJS policy provides in part that ''[t]he following information will not be released:. . .state fingerprint identification number (SID).''¹⁸⁴

 The Committee found it very instructive that the PSP does not release SID numbers to the public on the basis that SID numbers are criminal history record information, the release of which is controlled by CHRIA. Therefore, the Committee is not convinced that there is a legitimate public interest in releasing SID numbers. Therefore, the Committee recommends that the MDJS Policy of not releasing SID numbers be continued.

Financial Institution Account Numbers, Credit Card Numbers, PINS or Passwords Used to Secure Accounts

 The Committee maintains when an individual provides the court or office with a financial institution account number (e.g., banking account number) and/or a credit card number that they should not be released to the public because of the financial harm that can result. The CCJ/COSCA Guidelines provide in part that examples of ''documents, parts of the court record, or pieces of information (as opposed to the whole case file) for which there may be a sufficient interest to prohibit public access [include f]inancial information that provide identifying account numbers on specific assets, liabilities, accounts, credit cards, or personal identification numbers (PINs) of individuals or business entities.''¹⁸⁵ In addition, the Committee notes that the federal courts¹⁸⁶ and several states, such as Arizona,¹⁸⁷ California,¹⁸⁸ Colorado,¹⁸⁹ Florida,¹⁹⁰ Indiana,¹⁹¹ Minnesota,¹⁹² New York,¹⁹³ and Vermont¹⁹⁴ either prohibit the release of this information entirely or only permit the partial release of this information (i.e., the last four digits).

 The Committee opines that there is no legitimate public interest in obtaining financial account, credit card information, PINS or passwords used to secure accounts. Using the balancing test, the analysis would be concluded. In addition, the Committee stresses that releasing this information will further the threat of identity theft. The Committee, therefore, recommends that financial account and credit card information shall not be released.

Notes, Drafts, and Work Products Related to Court Administration or any Office that is the Primary Custodian of an Electronic Case Record

 The Committee notes that several states including: Arizona,¹⁹⁵ Idaho,¹⁹⁶ Indiana,¹⁹⁷ Minnesota,¹⁹⁸ Vermont,¹⁹⁹ and Utah²⁰⁰ have a similar provision regarding notes, drafts, and work products related to court administration or any office that is the primary custodian of an electronic case record. In addition, the CCJ/COSCA Guidelines provide in part that examples of ''documents, parts of the court record, or pieces of information (as opposed to the whole case file) for which there may be a sufficient interest to prohibit public access [include] judicial, court administration and clerk of court work product.''²⁰¹

 The CCJ/COSCA Guidelines define judicial work product as:

work product involved in the court decisional process, as opposed to the decision itself. This would include such things as notes and bench memos prepared by staff attorneys, draft opinions and orders, opinions being circulated between judges, etc. Any specification about this should include independent contractors working for a judge or the court, externs, students, and others assisting the judge who are not employees of the court or the clerk of court's office.²⁰²

 Court administration and clerk of court work product is defined by the CCJ/COSCA Guidelines as ''information. . .generated during the process of developing policy relating to the court's administration of justice and its operations.''²⁰³ The Guidelines indicate that court administration information that other states have excluded from public access include: communication logs of court personnel, meeting minutes, and correspondence of court personnel.²⁰⁴

 Although the Committee will not attempt to list every piece of information that will not be released pursuant to this provision, the Committee would note the following. This provision would prohibit the release of information pertaining to the internal operations of a court, such as data recorded in the case notes or judicial notes portions of the automated systems wherein the court and court staff can record various work product and confidential information and help desk records.

 The Committee when it balanced all the factors outlined above concluded that there is no legitimate public interest in releasing this type of information. Therefore, the Committee asserts that the same should not be released.

Information Sealed or Protected Pursuant to Court Order

 If there is a court order that seals a case record or information contained within that case record, the same shall not be released to the public. The Committee notes that New York²⁰⁵ has proposed and Maryland²⁰⁶ has adopted a similar prohibition.

Information to which Access is Restricted by Federal Law, State Law or State Court Rule

 This policy cannot supplant federal law, state law, or state court rule. Thus, if information is not releasable to the public pursuant to such authorities, the information cannot be released. The Committee did not specifically set forth in the policy each federal law, state law, or state court rule that prohibits the release of information to the public in that it suspects that to do so would require an amendment to the policy every time a law or rule was changed.²⁰⁷

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 MDJS policy provides that ''the following information will not be released:. . .other identifiers which would present a risk to personal security or privacy.''²⁰⁸ Moreover, the RTKA provides that the definition of ''public records'' does not include ''any record. . .which would operate to the prejudice or impairment of a person's reputation or personal security. . . .''²⁰⁹

 The Committee is mindful that it is difficult to anticipate every possible public access consideration, whether related to technology, administration, security or privacy, that might arise upon implementation of a policy. Moreover, resolution of issues that may have statewide impact need to be resolved in a timely and unified fashion.

 For example, in the recent past, law enforcement and court personnel raised security concerns with the AOPC about the release of certain MDJS data that jeopardized the safety of police officers and the administration of justice. The aforementioned MDJS policy provision permitted the Court Administrator to review the specific concerns and quickly take action to remedy the situation. The result being a more narrowly tailored access to MDJS criminal case data for bulk requestors that balanced the interests of transparency, security and operations of the court system. In a system as vast as ours, it is critical that such measures can be taken in a coordinated and effective manner.

 It is important to note that other state court systems' policies and rules have similarly provided for the need to promptly address unanticipated privacy and security concerns. See [Massachusetts] Policy Statement by the Justices of the Supreme Judicial Court Concerning Publications of Court Case Information on the Web (May 2003), p. 3; Kan.Sup.Ct. Rule 196(d)(3).

 The Committee is cognizant that providing a ''catchall'' provision such as this could lead to a perception of overreaching, and due consideration was given before offering this recommendation. Notwithstanding, it is believed that such a provision used in judicious fashion is absolutely necessary to the successful implementation of this policy, as has been the case with the MDJS.

Section 3.10 Requests for Bulk Distribution of Electronic Case Records

 A. A request for bulk distribution of electronic case records shall be permitted for data that is not excluded from public access as set forth in this policy.

 B. A request for bulk distribution of electronic case records not publicly accessible under Section 3.00 of this Policy may be fulfilled where: the information released does not identify specific individuals; the release of the information will not present a risk to personal security or privacy; and the information is being requested for a scholarly, journalistic, governmental-related, research or case preparation purpose.

 1. Requests of this type will be reviewed on a case-by-case basis.

 2. In addition to the request form, the requestor shall submit in writing:

 (a) the purpose/reason for the request;

 (b) identification of the information sought;

 (c) explanation of the steps that the requestor will take to ensure that the information provided will be secure and protected;

 (d) certification that the information will not be used except for the stated purposes; and

 (e) whether IRB approval has been received, if applicable.

2013 Commentary

 An Institutional Review Board (''IRB'') ascertains the acceptability of and monitors research involving human subjects. An IRB will typically set forth requirements for research projects, such as where the information is to be kept, who has access, how the information is codified, and what information is needed for matching purposes. If there is IRB approval documentation setting forth the information required under Subsection B(2), such documentation may be sufficient to satisfy the ''writing'' requirement of this subsection.

2007 Commentary

 In the judgment of the Committee, the number of electronic case records that may be requested by the public should not be limited. AOPC's practice has been to fulfill requests for bulk distribution of electronic MDJS case records regardless of the number of records involved. In addition, the Committee's recommendation and analysis on this issue closely mirrors the CCJ/COSCA Guidelines, which permit the release of bulk distribution of court records.²¹⁰ In addition, the Committee notes that several states, including California,²¹¹ Indiana,²¹² and Minnesota²¹³ permit the release of bulk data. Some states such as Kansas²¹⁴ and Colorado²¹⁵ (in part) do not permit the release of bulk data. Moreover, the RTKA provides that ''[a] policy or regulation may not include any of the following: a limitation on the number of public records which may be requested or made available for inspection or duplication.''²¹⁶ Therefore, the Committee recommends that requests for bulk distribution of electronic case records continue to be fulfilled.

 With regard to these requests, the Committee believes that the Judicial Automation Department may in the future implement in the Court's automated systems (PACMS, CPCMS, and MDJS) various ''canned'' reports which a user can produce for requestors in response to a request. However, until the development of these ''canned'' reports or in a situation where the request cannot be fulfilled with one of these ''canned'' reports, the requestor should be referred to the AOPC.

 A request for bulk distribution of electronic case records is defined as a request for all, or a subset, of electronic case records. Bulk distribution of electronic case record information shall be permitted for data that are publicly accessible as specified in the policy (e.g., date of birth, a party's address limited to city, state and ZIP code).

 In addition, a request for bulk distribution of information/data not publicly accessible may be permitted where: the information released does not identify specific individuals; the release of the information will not present a risk to personal security or privacy; and the information is being requested for a scholarly, journalistic, governmental-related, research or case preparation purpose.

 The court, office or record custodian will review requests for this type of information/data on a case-by-case basis. For example, a requestor may want to know the offense location of all rapes for a given year in Pennsylvania, but he does not want any personal information about the victims (such as name, social security number, etc) because he is conducting a study to see if most rapes occur in apartment buildings, single-family structures, or in public areas (such as malls or parking lots). This request could be fulfilled if the information released does not identify any of the victims; there is no risk to the personal security or privacy of the victims involved; and the information is being requested for a scholarly, journalistic, governmental-related, research or case preparation purpose.

 For requests of non-releasable information, the requestor shall in addition to the request form, submit in writing:

 —the purpose/reason for the request;

 —identification of the information sought;

 —explanation of the steps that the requestor will take to ensure that the information provided will be secure and protected; and

 —certification that the information will not be used except for the stated purposes.

 This section addresses requests for large volumes of data available from the statewide automation case management systems (PACMS, CPCMS, and MDJS) including incremental data files used to update previously received bulk distributions.²¹⁷

Section 3.20 Requests for Electronic Case Record Information from Another Court or Office

 Any request for electronic case record information from another court should be referred to the proper record custodian in the court or office where the electronic case record information originated. Any request for electronic case record information concerning multiple magisterial district judge courts or judicial districts should be referred to the Administrative Office of the Pennsylvania Courts.

Commentary

 The Committee asserts that for electronic case record information ''filed'' within a specific court or office the requestor should contact the court or office for information. However, requests for information about multiple magisterial district judge courts or judicial districts should be directed to and processed by the AOPC.

 In light of the fact that the CPCMS provides the capability for a clerk of courts in one county to produce information about a case in another county, the Committee is concerned that this policy might be used by a requestor to attempt to compel court and office personnel to produce information about a case in another county. The Committee assumes that most personnel would be averse to producing information about a case from another county in that the courts and offices currently have ''control'' over the release of their own case records. Therefore, it is preferable that situations in which court or office X is releasing court or office Y's case records be avoided. Therefore this section makes it clear that requests for electronic case record information should be made to the record custodian in the court or office where the electronic case record information originated.

 Generally, requests for information regarding a specific court or office should continue to be handled at the local level, but should be consistent with the statewide public access policy, thus ensuring that a requestor will get the same kinds of information from any court or office statewide. If a requestor is unable to obtain the information, the AOPC should work with the record custodian or appropriate administrative authority (e.g., district court administrator) to facilitate the fulfillment of the request consistent with the policy, as currently is done for MDJS requests. As a last resort, the AOPC may handle these requests directly, if possible.

 For requests regarding multiple magisterial district judge courts or judicial districts, the Committee recommends that such requests should be referred to the AOPC, which alone should respond to the same. The Committee opines that the AOPC will be in the best position to more efficiently handle these requests, considering the AOPC will be capable of identifying the precise technological queries needed to ''run'' the request.

Section 4.00 Responding to a Request for Access to Electronic Case Records

 A. Within 10 business days of receipt of a written request for electronic case record access, the respective court or office shall respond in one of the following manners:

 1. fulfill the request, or if there are applicable fees and costs that must be paid by the requestor, notify requestor that the information is available upon payment of the same;

 2. notify the requestor in writing that the requestor has not complied with the provisions of this policy;

 3. notify the requestor in writing that the information cannot be provided; or

 4. notify the requestor in writing that the request has been received and the expected date that the information will be available. If the information will not be available within 30 business days, the court or office shall notify the Administrative Office of Pennsylvania Courts and the requestor simultaneously.

 B. If the court or office cannot respond to the request as set forth in subsection A, the court or office shall concurrently give written notice of the same to the requestor and Administrative Office of Pennsylvania Courts.

Commentary

 Implementing the provisions of this policy should not unduly burden the courts and offices, nor should implementation impinge upon the judiciary's primary service—the delivery of justice. The question raised by this section is not whether there is to be access, but rather how and when access should be afforded.

 In drafting this section, the Committee was faced with two competing interests. First, any requirements imposed upon courts and offices regarding how and when they should respond to these requests must not interfere with the courts' and offices' ability to conduct their day-to-day operations, often with limited resources. Second, all requests should be handled by courts and offices in a predictable, consistent, and timely manner statewide. It is the Committee's opinion that the provisions of this section strike the appropriate balance between these two competing interests.

 As noted earlier in this Report, FOIA and RTKA are not applicable to the judiciary. However, the Committee when drafting this section of the policy paid particularly close attention as to how both Acts address this issue. In fact, the Committee incorporated elements of those Acts into this section of the policy.²¹⁸

 Under subsection A(4), the court or office shall specifically state in its written notification to the requestor the expected date that the information will be available. If the information will not be available within 30 business days, the court or office shall provide written notification to the requestor and the Administrative Office of Pennsylvania Courts at the same time. Possible reasons a court or office may need the additional period of time include:

 —the request, particularly if for bulk distribution of electronic case records, involves such voluminous amounts of information that the court or office may not be able to fulfill the same within the initial 10 business day period without substantially impeding the orderly conduct of the court or office; or

 —the court or office is not able to determine if this policy permits the release of the requested information within the initial 10 business day period. Therefore, the court or office may require an additional period of time to conduct an administrative review of the request to make this determination.

 If the court or office believes that the requestor has failed to comply with this policy, written notification to the requestor should set forth the specific areas of non-compliance. For example, a requestor may have failed to pay the appropriate fees associated with the request.

 Any written notification to the requestor stating that the information requested cannot be provided shall set forth the reason(s) for this determination.

 If the court or office is unable to respond to the request as set forth above, the AOPC should work with the record custodian or appropriate administrative authority (e.g., district court administrator) to facilitate the fulfillment of the request consistent with the policy, as currently is done for MDJS requests. As a last resort, the AOPC may handle these requests directly.

 The phrase ''in writing'' includes but is not limited to electronic communications such as email and fax.

 The Committee also discussed when a request is partially fulfilled (e.g., if the requestor asked for a defendant's name, address, and social security number, pursuant to Section 3.00 of this policy a court or office could not release the defendant's social security number or street address) whether the court or office should specifically set forth that it has the restricted information on record although it did not release the same. In the judgment of the Committee it is important that requestors are apprised that all requests for information are fulfilled pursuant to a statewide policy without necessarily pointing out each piece of information that is in the court's or office's possession but not released under the policy. Therefore, when responding to any request, a court or office should provide a general statement to the requestor that ''your request for information is being fulfilled consistent with the provisions of the Unified Judicial System Public Access Policy.''

 The time frames set forth in this section will usually only concern requests for bulk distribution for electronic case records.

Section 5.00 Fees

 A. Reasonable fees may be imposed for providing public access to electronic case records pursuant to this policy.

 B. A fee schedule shall be in writing and publicly posted.

 C. A fee schedule in any judicial district, including any changes thereto, shall not become effective and enforceable until:

 1. a copy of the proposed fee schedule is submitted by the president judge to the Administrative Office of Pennsylvania Courts; and

 2. the Administrative Office of Pennsylvania Courts has approved the proposed fee schedule.

Commentary

 The Committee first considered whether to charge a fee for fulfilling public access requests. It was noted that public access requests are often for information that is not readily available and require staff and equipment time to fulfill the same. The Committee asserts that these costs incurred by courts and offices in fulfilling a request should be passed on to the requestor. Clearly, absent the request, the court or office would not incur these costs.

 The Committee noted that the MDJS policy provides that ''[c]osts shall be assessed based on the actual costs of the report medium, a pro-rata share of computer and staff time, plus shipping and handling.''²¹⁹ The RTKA also provides that fees may be charged by agencies in fulfilling RTKA requests.²²⁰ The Committee reviewed the RTKA fee schedules of the Governor's Office, Lieutenant Governor's Office, and the Executive Offices²²¹ and the Department of Environmental Protection.²²² Outside of Pennsylvania, the Committee also noted that several states charge a fee to a requestor when responding to a public access request (which will be discussed in greater detail below). Therefore, the Committee opines that the current practice of charging public access requestors a fee for fulfilling their requests should continue.

 The Committee reviewed the costs charged by various state courts in responding to public access requests. In general, it appears that most court systems charge a fee that is intended to recoup from the requestor the costs incurred by the court in responding to the request. These court systems include Colorado,²²³ New York,²²⁴ Vermont,²²⁵ Maryland,²²⁶ Idaho,²²⁷ California,²²⁸ and Florida.²²⁹ However, some court systems, such as Minnesota,²³⁰ Arizona,²³¹ and Utah²³² appear to permit a cost/fee that is in excess of the costs incurred in responding to the request. The Committee also noted that the RTKA and FOIA differ on this issue as well. Specifically, the RTKA provides that fees must be reasonable and based on the prevailing fees for comparable services provided by local business entities, except for postage fees which must be the actual cost of postage.²³³ However, FOIA provides that only the direct costs incurred by the agency can be charged to the requestor.²³⁴

 If fees are based on the prevailing market rate, then fees will not only recoup the actual costs incurred by the particular court of office but also result in a profit. The objective of courts or offices in responding to public access requests is not to make a profit; rather it is to foster the values of open court records without unduly burdening court resources. Put simply, fees should not be financial barriers to accessing case record information. Fees assessed by courts or offices in satisfying public access requests must be reasonable, fair and affordable. To aid in defining the parameters of reasonable, fair and affordable fees, the Committee finds the definition for charges in the Vermont²³⁵ and New York²³⁶ policies instructive. Generally, the public access request fees should not exceed the actual costs associated with producing the requested information for copying, mailing or other methods of transmission, materials used and staff time.

 In the judgment of the Committee, it would be beneficial to both the public and AOPC if all courts or offices were required to promulgate their fee schedules. Therefore, the Committee recommends that a court's or office's fee schedule be in writing and publicly posted (preferably so as to permit viewing both in person and remotely via the Internet). This method is similar to the procedures adopted for the promulgation of local rules.²³⁷

 Subsection C provides that the Administrative Office of Pennsylvania Courts must approve all judicial district fee schedules—to include adoption of any new fees or fee increases—before the same are effective and enforceable.²³⁸ The purpose of this provision is to further a unified approach to fees associated with case record access in the Pennsylvania Judiciary—with an eye toward avoiding inconsistent and unfair charges amongst the various jurisdictions. This type of approach is not novel, as it is quite similar to the procedure set forth in Rule of Judicial Administration 5000.7(f) pertaining to the approval of court transcripts.

Section 6.00 Correcting Data Errors

 A. A party to a case, or the party's attorney, seeking to correct a data error in an electronic case record shall submit a written request for correction to the court in which the record was filed.

 B. A request to correct an alleged error contained in an electronic case record of the Supreme Court, Superior Court or Commonwealth Court shall be submitted to the prothonotary of the proper appellate court.

 C. A request to correct an alleged error contained in an electronic case record of the Court of Common Pleas, Philadelphia Municipal Court or a Magisterial District Court shall be submitted and processed as set forth below.

 1. The request shall be made on a form designed and published by the Administrative Office of Pennsylvania Courts.

 2. The request shall be submitted to the clerk of courts if the alleged error appears in an electronic case record of the Court of Common Pleas or Philadelphia Municipal Court. The requestor shall also provide copies of the form to all parties to the case, the District Court Administrator and the Administrative Office of Pennsylvania Courts.

 3. The request shall be submitted to the Magisterial District Court if the alleged error appears in an electronic case record of the Magisterial District Court. The requestor shall also provide copies of the form to all parties to the case, the District Court Administrator and the Administrative Office of Pennsylvania Courts.

 4. The requestor shall set forth on the request form with specificity the information that is alleged to be in error and shall provide sufficient facts including supporting documentation that corroborates the requestor's contention that the information in question is in error.

 5. Within 10 business days of receipt of a request, the clerk of courts or Magisterial District Court shall respond in writing to the requestor, all parties to the case, and the Administrative Office of Pennsylvania Courts, in one of the following manners:

 a. the request does not contain sufficient information and facts to adequately determine what information is alleged to be error; accordingly, the request form is being returned to the requestor; and no further action will be taken on this matter unless the requestor resubmits the request with additional information and facts.

 b. the request does not concern an electronic case record that is covered by this policy; accordingly, the request form is being returned to the requestor; no further action will be taken on this matter.

 c. it has been determined that an error does exist in the electronic case record and that the information in question has been corrected.

 d. it has been determined that an error does not exist in the electronic case record.

 e. the request has been received and an additional period not exceeding 30 business days is necessary to complete the review of this matter.

 6. A requestor has the right to seek review of a final decision under subsection 5(a)—(d) rendered by a clerk of courts or a Magisterial District Court within 10 business days of notification of that decision.

 a. The request for review shall be submitted to the District Court Administrator on a form that is designed and published by the Administrative Office of Pennsylvania Courts.

 b. If the request for review concerns a Magisterial District Court's decision, it shall be reviewed by the judge assigned by the President Judge.

 c. If the request for review concerns a clerk of courts' decision, it shall be reviewed by the judge who presided over the case from which the electronic case record alleged to be in error was derived.

Commentary

 An important aspect of transparent electronic case records and personal privacy/security is the quality of the information in the court record. The information in UJS electronic case records should be complete and accurate, otherwise incorrect information about a party to a case or court proceeding could be disseminated. The Committee recognizes that electronic case records are as susceptible to errors and omissions as any other public record, particularly when considered in view of the widespread Internet use and access, and agreed procedures for correcting these errors should be incorporated into this policy.

 The power of the court to correct errors in its own records is inherent.²³⁹ ''Equity enjoys flexibility to correct court errors that would produce unfair results.''²⁴⁰ Therefore, the Committee opines that the authority for a court to correct errors in its own records is inherent and does not arise from the Criminal History Record Information Act (CHRIA).²⁴¹ Although, the Committee does not interpret CHRIA as being applicable to the correction of court records,²⁴² the Committee consulted the correction of error section of CHRIA in drafting this section of the policy,²⁴³ specifically with regard to the safeguards that are found in CHRIA related to the time limitations for action and appeals. CHRIA permits a criminal justice agency 60 days to review a challenge to the accuracy of its record. The Committee believes the time for a decision concerning an alleged error in a court record should be limited in this section of the policy to a maximum of 40 business days. CHRIA also permits the challenger who believes the agency decision is in error to file an appeal. Similarly, in this policy, Subsection 6 permits a requestor who believes the decision is erroneous to seek administrative review as well.

 Subsection 6 provides an individual who asserts that an electronic case record is in error an administrative process by which that allegation can be reviewed and resolved. This administrative review process is modeled after the review process set forth in CHRIA and is in addition to any other remedies provided by law. It is important to note the review provided for in Subsection 6 by the Court of Common Pleas is administrative in nature.

 The Committee also took note of corrective procedures that other states, including Arizona,²⁴⁴ Colorado,²⁴⁵ Kansas,²⁴⁶ Minnesota,²⁴⁷ and Wisconsin²⁴⁸ as well as the CCJ/COSCA Guidelines,²⁴⁹ establish in their policies and/or court rules (enacted or proposed).

 In considering the procedures for correcting errors, 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 that there is an error in the court's decision, ruling or judgment. Rather, this section permits a party to ''fix'' information that appears in an electronic case record which does not, for one reason or another, correctly set forth the facts contained in the official court record (paper case file).

 It is anticipated that those reviewing these alleged errors shall compare the information set forth in the electronic case record against the official court record. If the information in the electronic case record and official court record is consistent, the request to correct the electronic case record should be denied. If the information is not consistent, the reviewer shall determine what, if any, corrections are needed to the electronic case record. Nonetheless, if the requestor believes that the official court record is in error, such an alleged error does not fall within the purview of this section. Rather, the current practices in place in the courts to resolve these errors should continue.

 By way of example, the official court records of a case set forth that the defendant's name is ''John Smith'', however, the electronic case record provides that the defendant's name is ''John Smyth''. Obviously this was a clerical or data entry error. This type of error falls within the purview of this section. However, if for example, a party claims that he was convicted of the crime of simple assault, but the official court record sets forth that he was convicted of the crime of driving under the influence, this error does not fall within the purview of this section in that the requestor is alleging an error in the official court record.

 This section does not preclude a court from accepting and responding to verbal or informal requests to correct a data error in an electronic case record. However, if a requestor wishes to enjoy the benefits of the relief and procedures set forth in this section, he/she must file a formal written request. This procedure is consistent with the RTKA which permits a governmental agency to accept and respond to verbal requests, but provides that ''[i]n the event that the requestor wishes to pursue the relief and remedies provided for in this act, the requestor must initiate such relief with a written request.''²⁵⁰

 In Subsection A, a ''party's attorney'' means attorney of record.

 In Subsection B, the Committee understands that the errors that may appear in appellate court records are different in nature and kind that those that appear at the lower courts. Specifically, most errors will concern the original records from the lower court that the appellate court is reviewing. Therefore, the Committee believes that appellate courts' current practices in resolving these errors should continue.

 The term ''clerk of courts'' includes any office performing the duties of a clerk of courts, regardless of titles (i.e., Clerk of Quarter Sessions, Office of Judicial Support, Office of Judicial Records).

Section 7.00 Continuous Availability of Policy

 A copy of this policy shall be continuously available for public access in every court or office that is using the PACMS, CPCMS, and/or MDJS.

Commentary

 The Committee opines that it is essential that the public has access to the provisions of this policy on a continuing basis. In drafting this language, the Committee found that the statewide Rules of Criminal Procedure and Civil Procedure have similar provisions regarding the continuing availability of local rules in each judicial district.²⁵¹ The Committee used that language as a guide in drafting this provision. The Committee recommends that this policy be publicly posted (preferably so as to permit viewing both in person and remotely via the Internet).

Additional Recommendations Concerning Paper Case Records

 As noted in the Introduction to the Report, the practical difficulties associated with covering paper case records concerning a single case counseled against inclusion in this policy. Even so, the Committee recommends that the UJS take steps in the future to avoid the personal privacy and security issues that may arise with respect to these records.

 The Committee proposes the creation of a sensitive information data form. When filing a document with a court or office, litigants and their attorneys would be required to refrain from inserting any sensitive information (such as social security numbers, financial account numbers, etc) in the filed document. Rather, all sensitive information should be inserted on the sensitive information data form, which would not be accessible to the public. Thus, the use of this form should over time help prevent sensitive information from appearing in the paper records that are accessible to the public. The Committee notes that Washington²⁵² and Kansas²⁵³ already uses a sensitive information data form, and Arizona²⁵⁴ and Minnesota²⁵⁵ are considering enacting rules/policies to provide for the same. The Committee recommends that this sensitive information data form be available at the courthouse and via the Internet.

[Pa.B. Doc. No. 18-674. Filed for public inspection May 4, 2018, 9:00 a.m.]

_______

¹³⁶  See MDJS policy, Section II.B.2.b. This prohibition is pursuant to 42 PA. CONS. STAT. § 5988(a) which provides that ''[i]n a prosecution involving a child victim of sexual or physical abuse, unless the court otherwise orders, the name of the child victim shall not be disclosed by officers or employees of the court to the public, and any records revealing the name of the child victim will not be open to public inspection.''

¹³⁷  See CCJ/COSCA Guidelines, p. 48.

¹³⁸  CAL. CT. R. 2077(c)(5) provides that ''the following information must be excluded from a court's electronic calendar, index and register of actions: (5) victim information'' before public access is permitted.

¹³⁹  Order of Supreme Court of Florida, No. AOSO04-4 (February 12, 2004). Specifically, the Order lists information that shall be accessible in electronic format to the public. Victim information is not listed in the Order.

¹⁴⁰  IND. ADMIN. R. 9(G)(1)(e). Specifically, the Rule provides that case records excluded from public access information that tends to explicitly identify victims, such as addresses, phone numbers, and dates of birth.

¹⁴¹  MN ST ACCESS TO REC RULE 8(2)(b) (WEST 2006). Remote access in electronic records to a victim's social security number, street address, telephone number, financial account numbers or information that specifically identifies the individual or from which the identity of the individual could be ascertained is prohibited.

¹⁴²  Policy Statement by the Justices of the Supreme Judicial Court Concerning Publications of Court Case Information on the Web (May 2003), p. 2. The policy provides that the trial court web site should not list any information that is likely to identify victims.

¹⁴³  Title 18 U.S.C.A. § 2265(d)(3) provides that ''[a] State. . .shall not make available publicly on the Internet any information regarding the registration or filing of a protection order, restraining order, or injunction in either the issuing or enforcing State. . .if such publication would be likely to publicly reveal the identity or location of the party protected under such order. A State. . .may share court-generated and law enforcement-generated information contained in secure, government registries for protection order enforcement purposes.''

¹⁴⁴  Order of Supreme Court of Florida, No. AOSO04-4 (February 12, 2004). Specifically, the Order lists information that shall be accessible in electronic format to the public. Informant information is not listed in the Order.

¹⁴⁵  MN ST ACCESS TO REC RULE 8(2)(b) (WEST 2006). Remote access in electronic records to a witness' social security number, street address, telephone number, financial account numbers or information that specifically identifies the individual or from which the identity of the individual could be ascertained will not be allowed.

¹⁴⁶  Policy Statement by the Justices of the Supreme Judicial Court Concerning Publications of Court Case Information on the Web, (May 2003), p. 2. The policy provides that the trial court web site should not list any information that is likely to identify witnesses (except for expert witnesses).

¹⁴⁷  CCJ/COSCA Guidelines, p. 48.

¹⁴⁸  Id.

¹⁴⁹  PA.R.CRIM.P. 630(A)(2), (3).

¹⁵⁰  PA.R.CRIM.P. 632(B).

¹⁵¹  PA.R.CRIM.P. 632(C).

¹⁵²  PA.R.CRIM.P. 632(F).

¹⁵³  PA.R.CRIM.P. 632(G).

¹⁵⁴  Please note that the Supreme Court has granted a petition for allowance of appeal in this matter. For more information, please see 884 A.2d 248-9 and 39-40 WAP 2005. See also Jury Service Resource Center v. De Muniz, —P.3d—, 2006 WL 1101064 (April 27, 2006) (Oregon Supreme Court held that the First Amendment did not require state and county officials to give full access to jury pool records).

¹⁵⁵  Id. At p. 7.

¹⁵⁶  VERMONT RULES FOR PUBLIC ACCESS TO COURT RECORDS RULE 6(b)(30). This subsection provides that ''the public shall not have access to the following judicial branch records. . .records with respect to jurors or prospective jurors as provided in Rules Governing Qualification, List, Selection and Summoning of All Jurors.''

¹⁵⁷  IDAHO RULES GOVERNING THE ADMINISTRATION AND SUPERVISING OF THE UNIFIED AND INTEGRATED IDAHO JUDICIAL SYSTEM, RULE 32(d)(5)&(6) records exempt from disclosure include ''records of. . .the identity of jurors of grand juries'' and ''the names of jurors placed in a panel for a trial of an action and the contents of jury qualification forms and jury questionnaires for these jurors, unless ordered to be released by the presiding judge.''

¹⁵⁸  Maryland Rule of Procedure 16-1004(B)(2) provides that ''. . .a custodian shall deny inspection of a court record used by the jury commissioner or clerk in connection with the jury selection process. Except as otherwise provided by court order, a custodian may not deny inspection of a jury list sent to the court pursuant to Maryland Rules 2-512 or 4-312 after the jury has been empanelled and sworn.''

¹⁵⁹  ARIZ. R. 123 Public Access to the Judicial Records of the State of Arizona, Subsection (e)(9) provides that ''the home and work telephone numbers and addresses of jurors, and all other information obtained by special screening questionnaires or in voir dire proceedings that personally identifies jurors summoned for service, except the names of jurors on the master jury list, are confidential, unless disclosed in open court or otherwise opened by order of the court.''

¹⁶⁰  MN ST ACCESS TO REC RULE 8(2)(b) (WEST 2006). Remote access in electronic records to a juror's social security number, street address, telephone number, financial account numbers or information that specifically identifies the individual or from which the identity of the individual could be ascertained will not be allowed.

¹⁶¹  UTAH J. ADMIN. R. 4-202.02(2)(k) provides that ''public court records include but are not limited to: name of a person other than a party, but the name of a juror or prospective juror is private unless released by a judge.'' Moreover, subsection (4)(i) of the same Rule provides that ''the following court records are private; the following personal identifying information about a person other than a party; address, email address, telephone number, date of birth, driver's license number, social security number, account description and number, password, identification number, maiden name and mother's maiden name.'' Rule 4-202-03 provides who has access to private records which in general appears not to be the public.

¹⁶²  http://abanet.org/juryprojectstandards/principles.pdf.

¹⁶³  Stellwag, Ted. ''The Verdict on Juries.'' The Pennsylvania Lawyer, pp. 15, 20. May-June 2005 (quoting the chairperson of the American Jury Project to say ''jurors 'should not have to give up their privacy. . .to do their public service.''').

¹⁶⁴  See MDJS policy, Section II.B.2.a.

¹⁶⁵  See CCJ/COSCA Guidelines, p. 49.

¹⁶⁶  Remote Public Access to Electronic Case Records: A Report on a Pilot Project in Eleven Federal Courts, prepared by the Court Administration and Case Management Committee of the Judicial Conference, p. 12. Although there is no restriction on the release of a party's address in civil cases, the pilot program in the eleven federal courts to provide public access to criminal case files electronically requires the redaction of all home addresses including those of parties.

¹⁶⁷  IND. ADMIN. R 9(F)(4)(d) provides that a request for bulk distribution and compiled information of case records that includes a request for addresses will be complied with by only providing the zip code of the addresses. However, Rule 9(G)(1)(e) provides that ''[t]he following information in case records is excluded from public access and is confidential. . .addresses. . .[of] witnesses or victims in criminal, domestic violence, stalking, sexual assault, juvenile, or civil protection order proceedings. . . .''

¹⁶⁸  MN ST ACCESS TO REC RULE 8(2)(b)(2) (WEST 2006). Remote access in electronic records to a party's street address will not be allowed.

¹⁶⁹  Policy Statement by the Justices of the Supreme Judicial Court Concerning Publications of Court Case Information on the Web (May 2003), p. 3. The policy provides that the trial court web site should not list an individual's address.

¹⁷⁰  Kansas Rules Relating to District Courts Rule 196(d)(3) ''[d]ue to privacy concerns, some otherwise public information, as determined by the Supreme Court, may not be available through electronic access. A nonexhaustive list of information generally not available electronically includes street addresses. . .''

¹⁷¹  Kentucky Court of Justice Access to Electronic Court Records (December 2003) provides in part that ''we decided to remove the individual's address. . .from public remote access.''

¹⁷²  VERMONT RULES GOVERNING DISSEMINATION OF ELECTRONIC CASE RECORDS RULE § 3(b).

¹⁷³  See also Local Rules of Practice for the Southern District of California Order 514-C(1)(e) which provides that ''in criminal cases, the home address of any individual (i.e. victim)'' is required to be removed or redacted from all pleadings filed with the court. Eastern District of Pennsylvania Local Rule 5.1.2 (electronic case file privacy) which provides in a part that in criminal cases parties should refrain from including or partially redacting home addresses from all documents filed with the court. (''If a home address must be included, only the city and state should be listed'').

¹⁷⁴  713 A.2d 627, 630 (Pa. 1998).

¹⁷⁵  720 A.2d 500, 502 (Pa.Commw. Ct. 1998).

¹⁷⁶  See MDJS policy, Section II.B.2.a.

¹⁷⁷  See CCJ/COSCA Guidelines, p. 48.

¹⁷⁸  CAL. CT. R. 2077(c)(6) provides that ''the following information must be excluded from a court's electronic calendar, index and register of actions: (6) witness information'' before public access is permitted.

¹⁷⁹  Order of Supreme Court of Florida, No. AOSO04-4 (February 12, 2004). Specifically, the Order lists information that shall be accessible in electronic format to the public. Witness information is not listed in the Order.

¹⁸⁰  IND. ADMIN. R. 9(G)(1)(e). Specifically, the Rule provides that case records excluded from public access information that tends to explicitly identify witnesses, such as addresses, phone numbers, and dates of birth.

¹⁸¹  MN ST ACCESS TO REC RULE 8(2)(b) (WEST 2006). Remote access in electronic records to a witness' social security number, street address, telephone number, financial account numbers or information that specifically identifies the individual or from which the identity of the individual could be ascertained is prohibited.

¹⁸²  Policy Statement by the Justices of the Supreme Judicial Court Concerning Publications of Court Case Information on the Web (May 2003), p. 2. The policy provides that the trial court web site should not list any information that is likely to identify witnesses except for expert witnesses.

¹⁸³  18 PA. CONS. STAT. § 9101 et. seq.

¹⁸⁴  See MDJS Policy, Section II.B.2.a.

¹⁸⁵  See CCJ/COSCA Guidelines, p. 48.

¹⁸⁶  Remote Public Access to Electronic Case Records: A Report on a Pilot Project in Eleven Federal Courts, prepared by the Court Administration and Case Management Committee of the Judicial Conference, p. 12 and the Report of the Judicial Conference Committee on Court Administration and Case Management on Privacy and Public Access to Electronic Case Files, p. 3. With regard to Judicial Conference's recommendation for public access to civil case files electronically and the pilot program in the eleven federal courts to provide public access to criminal case files electronically, both require that only the last four digits of the financial account number are releasable. See also Local Rules of Practice for the Southern District of California Order 514-C(1)(d) and Eastern District of Pennsylvania Local Rule of Civil Procedure 5.1.3.

¹⁸⁷  ARIZ. SUP. CT. R. 123(c)(3). The Rule provides that ''documents containing. . .credit card, debit card, or financial account numbers or credit reports of an individual, when collected by the court for administrative purposes, are closed unless made public in a court proceeding or upon court order.'' Arizona Rule 123 Public Access to the judicial records of the state, and Report and Recommendation of the Ad Hoc Committee to Study Public Access to Electronic Records dated March 2001 Sections (IV)(B), (IV)(D), (V)(1) and (VI)(6).

¹⁸⁸  CAL. CT. R. 2077(c)(2) which provides that ''the following information must be excluded from a court's electronic calendar, index, and register of actions: (2) any financial information'' before public access is permitted.

¹⁸⁹  Colo. CJD. 05-01 Section 4.60(b) provides that ''the following information in court records is not accessible in electronic format due to the inability to protect confidential information. It may be available at local courthouses. . .financial files—everything except for the financial summary screen.''

¹⁹⁰  Order of Supreme Court of Florida, No. AOSO04-4 (February 12, 2004). Specifically, the Order lists information that shall be accessible in electronic format to the public. Financial account numbers and credit card numbers are not listed in the Order.

¹⁹¹  IND. ADMIN. R. 9(G)(1)(f). Specifically, the Rule provides that account numbers of specific assets, liabilities, accounts, credit cards, and personal identification numbers (PINS) shall not be released.

¹⁹²  MN ST ACCESS TO REC RULE 8(2)(b)(4) (WEST 2006). Remote access in electronic records to financial account numbers of parties or their family members, witnesses, jurors, or victims of criminal or delinquent acts is prohibited.

¹⁹³  Report to the Chief Judge of the State of New York by the Commission on Public Access to Court Records (February, 2004), p. 8. The Report provides that financial account numbers should be shortened to their last four digits.

¹⁹⁴  VERMONT RULES FOR PUBLIC ACCESS TO COURT RECORDS RULE 6(b)(10) & (11). These Rules provide that the public shall not have access to records containing financial information furnished to the court in connection with an application to proceed in forma pauperis (not including the affidavit submitted in support of the application) and records containing financial information furnished to the court in connection with an application for an attorney at public expense (not including the affidavit submitted in support of the application). See also VERMONT RULES GOVERNING DISSEMINATION OF ELECTRONIC CASE RECORDS RULE § 3(b).

¹⁹⁵  PUBLIC ACCESS TO THE JUDICIAL RECORDS OF THE STATE OF ARIZONA, Rule 123(d)(3) provides that ''notes, memoranda or drafts thereof prepared by a judge or other court personnel at the direction of a judge and used in the process of preparing a final decision or order are closed.''

¹⁹⁶  IDAHO ADMIN. R. 32(d)(15). This Rule provides that judicial work product or drafts, including all notes, memoranda or drafts prepared by a judge or a court-employed attorney, law clerk, legal assistant or secretary and used in the process of preparing a final decision or order except the official minutes prepared pursuant to law are not accessible by the public.

¹⁹⁷  IND. ADMIN. R. 9(G)(1)(h). Specifically, the Rule provides that case records excluded from public access include all personal notes and email, and deliberative material, of judges, court staff and judicial agencies.

¹⁹⁸  MN ST ACCESS TO REC RULE 4(1)(c) (WEST 2006). Case records that are not accessible by the public include ''all notes and memoranda or drafts thereof prepared by a judge or by a court employed attorney, law clerk, legal assistant or secretary and used in the process of preparing a final decision or order. . . .''

¹⁹⁹  VERMONT RULES FOR PUBLIC ACCESS TO COURT RECORDS RULE 6(b)(12). These Rules provide that ''records representing judicial work product, including notes, memoranda, research results, or drafts prepared by a judge or prepared by other court personnel on behalf of a judge, and used in the process of preparing a decision or order'' are not available for public access.

²⁰⁰  UTAH J. ADMIN. R. 4-202.02(5)(H) provides that ''the following court records are protected. . .memorandum prepared by staff for a member of any body charged by law with performing a judicial function and used in a decision making process.''

²⁰¹  See CCJ/COSCA Guidelines, p. 48-49.

²⁰²  See CCJ/COSCA Guidelines, p. 50.

²⁰³  See CCJ/COSCA Guidelines, p. 50.

²⁰⁴  See CCJ/COSCA Guidelines, p. 51. See also ARIZ. SUP. CT. R. 123(e) (restricting access to inter alia judicial case assignments, pre-decisional documents, and library records); CAL. CT. R. 2072(a) (excluding personal notes or preliminary memoranda of court personnel from definition of court record); FLA. J. ADMIN. R. 2.051(c) (keeping confidential inter alia materials prepared as part of the court's judicial decision-making process utilized in disposing of case and controversies unless filed as a part of the court record); Report to the Chief Judge of the State of New York by the Commission on Public Access to Court Records (February 2004), p. 1, ftnt. 2 which indicates that information captured by a case tracking system that is for internal use only is not deemed to be public case record data; proposed amendment to VERMONT RULES FOR PUBLIC ACCESS TO COURT RECORDS RULE 5(b)(14) (restricting access to inter alia ''communications between judicial branch personnel with regard to internal operations of the court, such as scheduling of cases, and substantive or procedural issues.'').

²⁰⁵  Report to the Chief Judge of the State of New York by the Commission on Public Access to Court Records (February, 2004), p. 22 which provides that ''sealed records may not be viewed by the public.''

²⁰⁶  Maryland Rule of Procedure 16-1006(J)(1) which provides that ''the custodian shall deny inspection of. . .a case record that: a court has ordered sealed or not subject to inspection. . . .''

²⁰⁷  See, e.g., 42 Pa.C.S. §§ 6307, 6352.1 and Pa.R.J.C.P. 160 (providing limitations on the release of juvenile case record information).

²⁰⁸  See MDJS Policy, Section II.B.2.a.

²⁰⁹  PA. STAT. ANN. tit. 65, § 66.1 (West 2006).

²¹⁰  See CCJ/COSCA Guidelines, pp. 34, 35, and 39.

²¹¹  See CAL. CT. R. 2073(f) which provides that ''a court may provide bulk distribution of only its electronic calendar, register of actions and index. 'Bulk distribution' means distribution of all, or a significant subset, of the court's electronic records.''

²¹²  IND. ADMIN. R. 9(F) permits the release of bulk or compiled data.

²¹³  MN ST ACCESS TO REC RULE 8(3) (WEST 2006).

²¹⁴  Kansas Rules Relating to District Courts Rule 196(e) ''Bulk and Compiled Information Distribution—Information in bulk or compiled format will not be available.''

²¹⁵  Colo. CJD. 05-01 provides in Section 4.30 that bulk data will not be released to individuals, government agencies or private entities. Bulk data being the entire database or that subset of the entire database that remains after the extraction of all data that is confidential under law. However, Section 4.40 provides that requests for compiled data for non-confidential data will be entertained. There are numerous criteria that will be used to determine if the request will be granted. Compiled data is defined as data that is derived from the selection, aggregation or reformulation of specific data elements within the database.''

²¹⁶  PA. STAT. ANN. tit. 65, § 66.8(c)(1) (West 2006).

²¹⁷  After receipt of the initial bulk data transfer, requestors receive additional data sets (increments) periodically that allow them to update their current file.

²¹⁸  5 U.S.C. § 552(a)(6) (2006) and PA. STAT. ANN. tit. 65, §§ 66.3-3 (West 2006).

²¹⁹  See MDJS Policy, Section II.B.5.

²²⁰  See PA. STAT. ANN. tit. 65, § 66.7 (West 2006).

²²¹  See Commonwealth of Pennsylvania Governor's Office, Lieutenant Governor's Office, and Executive Offices—Right-To-Know Request Policy.

²²²  See DEP and the Pennsylvania Right-To-Know Law Schedule of Charges for Public Access.

²²³  Colo. DJD. 05-01 Section 6.00—Fees for Access—''Clerks of Court and the State Court Administrator's Office may charge a fee for access to court records pursuant to § 24-72-205(2) and (3) C.R.S. and Chief Justice Directive 96-01. The costs shall include: administrative personnel costs associated with providing the court records; direct personnel costs associated with programming or writing queries to supply data; the personnel costs associated with testing the data for validity and accuracy; maintenance costs associated with hardware and software that are necessary to provide data as expressed in Computer Processing Unit (CPU), network costs, and operating costs of any reproduction medium (i.e. photocopies, zip disks, CD, etc). To the extent that public access to electronic court records is provided exclusively through a vendor, the State Court Administrator's Office will ensure that any fee imposed by the vendor for the cost of providing access is reasonable. The authorization to charge fees does not imply the service is currently available.''

²²⁴  Report to the Chief Judge of the State of New York by the Commission on Public Access to Court Records (February, 2004), p. 7-8. The Report provides that ''records over the Internet [should] be free of charges; if the [court] determines that a charge is advisable we recommend that the charge be nominal and that it in no event should exceed the actual cost to provide such record.''

²²⁵  1 VT. STAT. ANN. § 316(b)—(d) and (f) provides that if any cost is assessed it is based upon the actual cost of copying, mailing, transmitting, or providing the document.

²²⁶  Maryland Rule of Procedure 16-1002(d) provides that ''Reasonable fees means a fee that bears a reasonable relationship to the actual or estimated costs incurred or likely to be incurred in providing the requested access. Unless otherwise expressly permitted by these Rules, a custodian may not charge a fee for providing access to a court record that can be made available for inspection, in paper form or by electronic access, with the expenditure of less than two hours of effort by the custodian or other judicial employee. A custodian may charge a reasonable fee if two hours or more of effort is required to provide the requested access. The custodian may charge a reasonable fee for making or supervising the making of a copy or printout of a court record.''

²²⁷  IDAHO ADMIN. R. 32(l). This Rule provides the clerk should charge $1.00 a page for making a copy of any record filed in a case (per Idaho Stat. § 31-3201) and for any other record the clerk shall charge the actual cost of copying the record, including personnel costs.

²²⁸  CAL. CT. R. 2076 provides that the court may impose fees for the cost of providing public access to its electronic records as provided by Government Code section 68150(h) (which sets forth that access shall be provided at cost).

²²⁹  See FLA. J. ADMIN. R. 2.051(e)(3) and FLA. STAT. ANN. § 119.07 which appears to permit the charging for cost of duplication, labor and administrative overhead.

²³⁰  MN ST ACCESS TO REC RULE 8(6) (WEST 2006). ''When copies are requested, the custodian may charge the copy fee established by statute but, unless permitted by statute, the custodian shall not require a person to pay a fee to inspect a record. When a request involves any person's receipt of copies of publicly accessible information that has commercial value and is an entire formula, pattern, compilation, program, device, method, technique, process, data base, or system developed with a significant expenditure of public funds by the judicial branch, the custodian may charge a reasonable fee for the information in addition to costs of making, certifying, and compiling the copies.''

²³¹  Arizona Rule 123 Public Access to the Judicial Records of the State of Arizona, Subsection (f)(3) provides different levels of fees for requestors for non-commercial purposes and commercial purposes. For non-commercial requestors ''[i]f no fee is prescribed by statute, the custodian shall collect a per page fee based upon the reasonable cost of reproduction.'' See Rule 123(f)(3)(A). For commercial requestors, ''the custodian shall collect a fee for the cost of: (i) obtaining the original or copies of the records and all redaction costs; and (ii) the time, equipment and staff used in producing such reproduction.'' See Rule 123(f)(3)(B)(i) and (ii).

²³²  UTAH J. ADMIN. R. 4-202.08 establishes a uniform fee schedule for requests for records, information, and services.

²³³  See PA. STAT. ANN. tit. 65, § 66.7 (West 2006).

²³⁴  5 U.S.C. § 552(a)(4)(a)(iv) (2006). In addition, the Committee noted that for certain types of requestors FOIA provides that the first two hours of search time or the first 100 pages of duplication can be provided by the agency without charging a fee. 5 U.S.C. § 552(a)(4)(a)(iv)(II) (2006).

²³⁵  1 VT. STAT. ANN. § 316(b)—(d) and (f) provides that if any cost is assessed it is based upon the actual cost of copying, mailing, transmitting, or providing the document.

²³⁶  Report to the Chief Judge of the State of New York by the Commission on Public Access to Court Records (February, 2004), p. 7-8. The Report provides that ''records over the Internet [should] be free of charges; if the [court] determines that a charge is advisable we recommend that the charge be nominal and that it in no event should exceed the actual cost to provide such record.''

²³⁷  See PA.R.J.A. 103(c), PA.R.CRIM.P. 105(c) and PA.R.C.P. No. 239(c).

²³⁸  See Pa. Const. Art. V, § 10(c); Pa.R.J.A. 501(a), 504(b), 505(11), 506(a); 42 Pa.C.S. § 4301.

²³⁹  E.g. Jackson v. Hendrick, 746 A.2d 574 (Pa. 2000).

²⁴⁰  Id. at 577.

²⁴¹  18 Pa.C.S. § 9101—9183.

²⁴²  The Committee notes that it is unclear the extent, if any, to which CHRIA is applicable to court records. Specifically, 18 Pa.C.S. Section 9103 provides that CHRIA is applicable to ''person within this Commonwealth and to any agency of the Commonwealth or its political subdivisions which collects, maintains, disseminates or receives criminal history record information.'' Clearly, the court is not an agency, political subdivision or a person of the Commonwealth. Moreover, Criminal History Record Information is defined in 18 Pa.C.S. Section 9102 as ''does not include. . .information and records specified in section 9104 (relating to scope).'' 18 Pa.C.S. Section 9014(a)(2) appears to reference ''any documents, records, or indices prepared or maintained by or filed in any court of this Commonwealth, including but not limited to the minor judiciary.'' Moreover, Section 9104(b) provides that ''court dockets. . .and information contained therein shall. . .for the purpose of this chapter, be considered public records.'' If one does contend that the correction procedures set forth in CHRIA are applicable to court records, it is important to note that the procedure provides that a person who wants to appeal a court's decision regarding an alleged error files that appeal with the Attorney General Office. Thus, the Attorney General Office, a part of the Executive Branch of Government, would be reviewing a decision issued by a Court of the Unified Judicial System. Such a procedure appears to raise some constitutional concerns.

²⁴³  See 18 Pa.C.S. § 9152.

²⁴⁴  Report and Recommendation of the Ad Hoc Committee to Study Public Access to Electronic Records dated March 2001 Sections (V)(8) and (VI)(8); ARIZ. SUP. CT. R. 123(g)(6) (this provision, and others related to public access, was adopted by Order of Arizona Supreme Court dated June 6, 2005 to be effective December 1, 2005; effective date postponed by Court's Order dated September 27, 2005 to permit effective and efficient implementation of the provisions).

²⁴⁵  Colo. CJD. 05-01 Section 9.00 provides for a process to change inaccurate information in a court record.

²⁴⁶  K.S.A. § 60-260 and Kansas Rules Relating to District Courts Rule 196(f).

²⁴⁷  MN ST ACCESS TO REC RULE 7(5) (WEST 2006).

²⁴⁸  Wisconsin Circuit Court Access (WCCA) Web site, ''The information on a case is incorrect. Could you correct the information?'' at: http://wcca.wicourts.gov/faqnonav.xsl;jsessionid=8036D1470A038AB3CBB55B35613773C6.render4#Faq11 and ''Who do I contact if I want clarification about information displayed on WCCA?'' at: http://wcca.wicourts.gov/faqnonav.xsl;jsessionid=8036D1470A038AB3CBB55B35613773C6.render4#Faq18

²⁴⁹  See CCJ/COSCA Guidelines, p. 69.

²⁵⁰  65 P.S. § 66.2(b).

²⁵¹  PA.R.CRIM.P. 105(c)(5) and PA.R.C.P. No. 239(c)(5) provide that the local rules shall be kept continuously available for public inspection and copying in the office of the prothonotary or clerk of courts. Upon request and payment of reasonable costs of reproduction and mailing, the prothonotary or clerk shall furnish to any person a copy of any local rule.

²⁵²  WASH. CT. GR. 22(c)(2) (2006). Please note that this rule only applies to family law cases.

²⁵³  Kansas Rules Relating to District Courts Rule 123 (Rule Requiring Use of Cover Sheets and Privacy Policy Regarding Use of Personal Identifiers in Pleading). The Rule provides that in divorce, child custody, child support or maintenance cases, a party must enter certain information only on the cover sheet which is not accessible to the public. Specifically, a party's or party's child's SSN and date of birth must be entered on the cover sheet only. Moreover, the Rule provides that unless required by law, attorneys and parties shall not include SSNs in pleadings filed with the court (if must be included use last four digits), dates of birth (if must be included use year of birth), and financial account numbers (if must be included use last four digits).

²⁵⁴  See Supreme Court of Arizona's Order of September 27, 2005 vacating amendments to Rule 123 (that were set to become effective on December 1, 2005). The September Order creates a working group of court officials to resolve outstanding issues and issue a report to the Court on or before June 1, 2006.

²⁵⁵  Recommendations of Minnesota Supreme Court Advisory Committee on Rules of Public Access to Records of the Judicial Branch (June 28, 2004), p. 74-75.

---

No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.

---