This guest post by Lily Li of Metaverse Law is a follow-on post to Inside the Implications of GDPR & CCPA on Public Records by Jeff Cox.
The right of access to court records ensures accountability in the legal system. With this right of access, we can see the reasoning behind court opinions, understand the implications of new laws, and report and comment on biases and power imbalances within the courtroom. Without this right, we lose our ability to place checks on judicial power.
At its core, the rule of law requires transparency to function, and for this transparency to exist, there must be some sacrifice of personal privacy.
Yet, even in the courtroom, the public’s right of access is not absolute. Long before the enactment of the General Data Protection Regulation (“GDPR”) in Europe, or the California Consumer Privacy Act (“CCPA”) in the United States, judges have struggled with the proper balance between our First Amendment rights to public court records and parties’ rights to privacy, fairness, and safety.
This struggle has resulted in a long line of case law surrounding the (1) sealing of court records or closure of testimony during proceedings, (2) use of “Doe” pseudonyms in place of party names, and (3) expungement or sealing of court records after a proceeding. The first two mechanisms exist to protect individual privacy and safety during an action and prior to the release of any public records, while the last mechanism serves to erase past court records to protect individual privacy and satisfy our public interest in rehabilitation. With just a few tweaks to these existing mechanisms, the current case law strikes an appropriate balance between the public’s First Amendment rights and individuals’ privacy interests. Consequently, public court records should remain in the public domain, and exempt from privacy legislation under the GDPR, CCPA, and other privacy laws in consideration.
Motions to Seal/Close Testimony
The U.S. Supreme Court, California Supreme Court, and other jurisdictions recognize the presumption of openness for court proceedings. See Press-Enterprise Co. v. Superior Court of California, Riverside, 464 U.S. 501 (1984); NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178 (1999). As noted by Chief Justice Burger, “[p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Richmond Newspapers v. Virginia, 448 U.S. 555, at 572 (1980). “Open trials assure the public that procedural rights are respected, and that justice is afforded equally. Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for law. Public access is essential, therefore, if trial adjudication is to achieve the objective of maintaining public confidence in the administration of justice.” Id. at 595.
Therefore, in order to seal records, and overcome this presumption of openness, courts must find that “(i) there exists an overriding interest supporting closure and/or sealing; (ii) there is a substantial probability that the interest will be prejudiced absent closure and/or sealing; (iii) the proposed closure and/or sealing is narrowly tailored to serve the overriding interest; and (iv) there is no less restrictive means of achieving the overriding interest.” NBC Subsidiary, supra, 20 Cal.4th at p. 1217 (emphasis added). These overriding interests are narrow, and implicate highly sensitive privacy interests, such as the protection of child sex abuse victims or the “painful and sometimes disgusting details of a divorce case.” See Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 607 (1982); see also Request of William H. Caswell, 18 R.I. 835, 836 (R.I. 1893).
“Jane Doe” and “John Doe” cases go one step further and allow plaintiffs to proceed anonymously in litigation. Like motions to seal, the use of pseudonyms requires special circumstances where the need for anonymity outweighs the public’s interest in anonymity and the defendants’ right to trial. These circumstances are also appropriately narrow, and include the following situations: (1) where there is a risk of retaliatory physical or mental harm; (2) when anonymity is necessary “to preserve privacy in a matter of sensitive and highly personal nature,” see Doe v. United Services Life Ins. Co., 123 F.R.D. 437 (S.D.N.Y.1988) (allowing plaintiff to protect against identification as a homosexual); Doe v. Deschamps, 64 F.R.D. 652, 653 (D.Mont.1974) (protecting plaintiff’s identity in an abortion suit; and (3) when the anonymous party is required to admit to illegal conduct. See Hooper v. Deukmejian, 122 Cal.App.3d 987, 1004–1005 (1981) (named plaintiff and Doe plaintiff challenged the classification of marijuana possession offenses); Doe v. Saenz, 140 Cal.App.4th 960 (2006) (Doe plaintiff, a convicted robber, challenged a state agency’s refusal to allow her to work after rehabilitation).
Post-Conviction Expungement/ Sealing of Records
Finally, most states allow criminal defendants to expunge (i.e. delete) or seal records for juvenile proceedings, once the juvenile reaches 18 years of age or after a set period of rehabilitation. See California Rules of Court, Rule 5.830. Similarly, in certain circumstances, states may allow defendants to seal records of minor misdemeanors or records of arrests that do not lead to convictions. See New York Criminal Procedure Law Section 160.50; see also California Assembly Bill No. 1793 (requiring the identification of prior marijuana convictions eligible for dismissal or sealing by July 1, 2019).
Opening Pandora’s Box
Deciding privacy interests during court proceedings, whether through motions to seal or “Doe” litigation, is a far more efficient and fair process than tackling CCPA “right to deletion” or GDPR “right to be forgotten” requests in hindsight. These mechanisms properly place the burden of proof on the parties seeking to keep court records private, before any third parties are involved.
Once court records are public, however, the proverbial Pandora’s Box is open. The public is free to disseminate the record across the vast reaches of the internet, via blog posts, social media, news platforms, and a vast network of online service providers. To claw back this information is a Herculean effort. Online companies that facilitate access to court records (and the resulting access to justice) should not bear the disproportionate burden of determining “right to deletion” requests. Nor should we encourage such providers to engage in a case-by-case analysis of the public’s interest versus personal privacy rights – as commercial entities – where the deletion of such information represents the deletion of judicial decisions from the public awareness.
Post-conviction expungement or sealing orders operate in a gray area, as they occur after information becomes available to the public, but still implicate strong public interests in rehabilitation. In these limited circumstances, where a post-conviction expungement or sealing order exists, legislatures may consider providing individuals a “right to deletion” of publicly available court records. At least in this very narrow circumstance, third parties will not bear the burden of determining whether an individual’s right to deletion is appropriate – the court has already made the determination for them.
Making the Process Better
There is room for improvement, however, in current court practices. At this time, no standard procedure exists amongst the state or federal courts to seal records. Parties must rely on the expertise of attorneys familiar with often-arcane local rules, even to submit basic requests to seal sensitive information. And even then, courts have inadvertently disclosed confidential information to the public. See Doe v. Superior Court, 3 Cal.App.5th 915 (2016) (court accidentally posted Doe plaintiff’s name on court website). Though the current, substantive standards in Press-Enterprise Co. or NBC Subsidiary are necessary to protect our First Amendment rights, the process for sealing court records is unwieldy and time consuming. Aging docket management systems also contribute to unforced errors.
Like other areas of law, legislatures should consider developing and adopting model forms across jurisdictions, focused on sealing records and adjudicating the personal privacy concerns of parties and their witnesses. In addition, like the GDPR and CCPA, courts should update their information technology systems and administrative practices to protect personal information. As legislatures around the world push for more privacy protections, courts can no longer consider motions to seal, protective orders, and designations of Doe plaintiffs as ancillary to a case. Instead, courts need to do what they do best – weigh the equities between two competing legal interests – First Amendment rights and personal privacy rights.
To conclude, the CCPA, GDPR and other privacy laws should not restrict our right of access to public court records. We already have procedures in place to address and protect the most sensitive personal information in the courtroom, and for the remaining personal details, the First Amendment necessitates disclosure. By streamlining and enforcing these privacy protections during court proceedings, we can avoid further complications and expense, as third parties litigate their rights to disseminate public court records – or worse yet, delete everything.
Lily Li is a data privacy and cybersecurity lawyer and the owner of Metaverse Law. She helps companies from startups to public entities comply with data protection laws across multiple jurisdictions, including state incident response laws, CCPA, GDPR, and the NY Department of Financial Services Cybersecurity Regulation. Lily is a graduate of Duke Law School and a Certified Information Privacy Professional for the United States and Europe.