LAW & POLICY WORK GROUP RECOMMENDATIONS

Lisa J. Norris-LampeChair, Oregon eCourt Law & Policy Work Group

OJD-OSB eCourt Task Force Presentation, September 2011

ECOURT LAW & POLICY WORK GROUP – CHARGE & FOUNDING PRINCIPLES

Identify and recommend law and policy positions and changes necessary to support an electronic court environment; and

Identify court business processes that can be standardized to support and facilitate adoption of electronic court environment.

CHARGE (FROM 2008 CHARTER):

Develop collaborative environment between Office of the State Court Administrator (OSCA), the courts, and other stakeholders for recommendations on law and policy;

Develop timely law and policy recommendations for the OJD Oregon eCourt Program;

Pursue best practices that should be reflected in or supported by OJD law and policy recommendations; and

Encourage open disclosure of work group efforts.

FOUNDING PRINCIPLES:

STRUCTUREOregon eCourt Governance

Structure

Law & Policy Work Group

Confidential Information Subgroup(not presently active)

Statewide Forms Subgroup(Active)

Redaction-Segregation Group (drafted UTCR

Ch. 22)

Civil Group

Criminal Group

Domestic Relations Group

Juvenile Group

Probate Group

Tax Group

Juvenile Social File Group

Contempt Group

OJINGroup

UTCR CHAPTER 22 (& RELATED UTCR AMENDMENTS):

RECOMMENDATIONS PROCESS

Redaction-Segregation Group Drafted UTCR Amendments and Draft Chapter 22 (Remote Electronic Access, re: Case Documents), incorporating feedback from OJD-OSB eCourt Task Force and other considerations arising from Law & Policy small groups. (May 2009 through November 2010)

Redaction-Segregation Group also proposed several conforming amendments to existing UTCRs, including new versions of UTCR 2.100 and 2.110 (protected personal information). (May 2009 through November 2010)

Final UTCR Packet approved by Law & Policy and submitted to eCourt Program. (December 2010; supp’l Feb.-April 2011)

Updated UTCR Packet prepared by Chair, incorporating approved small group recommendations. Packet submitted to OJD eCourt Governance, UTCR Committee, and Joint OJD-OSB eCourt Task Force. (Sept. 2011)

SUBSTANTIVE LAW/SMALL GROUPS: Eight “substantive law” groups plus OJIN Group (Met

throughout timeframe of May 2009 through November 2010). Groups reviewed applicable statutory provisions and other

related laws and rules, and considered current court practices re: document access in different case types (civil, criminal, domestic relations, juvenile, probate, tax, and contempt). OJIN Group considered legal and policy implications of making certain case information remotely available in future eCourt system.

Each group prepared and approved final recommendation materials regarding future eCourt system and document access in the case type.

Recommendations approved (in some instances, as amended), by full Law & Policy Work Group.

Recommendations submitted to eCourt Program in December 2010, with updates through early April 2011.

Recommendations incorporated by Chair into updated UTCR Packet in August 2011, distributed September 2011.

REMOTE ELECTRONIC ACCESS RECOMMENDATIONS

Key Focus: Facilitate achievement of Oregon eCourt vision by balancing competing policy choices: Providing broad public access to court documents (by making those

documents available for online viewing and purchase); versus Preventing unauthorized or inappropriate disclosure of certain identifying

information, to protect against identity theft, financial fraud, and other crime, and otherwise to prevent unnecessarily broad disclosure of certain information.

Governance direction provided in Fall 2009: Any difference between “courthouse” access and remote electronic access through a registered user/subscription service must be minimal and justified as follows: (1) to protect against identity theft, financial fraud, and/or potential physical harm; and (2) otherwise, based on only an “articulable, persuasive justification” for limiting remote electronic access to an otherwise “public” court document.

Draft Uniform Trial Court Rule Chapter 22, encompasses: Concept of registered user access to most court documents; Proposed “user views” for access to documents; and Proposed rules to consistently protect certain personal information.

Key Definitions: “Over-the-counter access,” or “courthouse access,” means in-person

access to a case file by requesting the file from court staff (future vision is through courthouse terminals).

“Remote electronic access” means remote access by external-to-OJD users to electronic case file documents. Access facilitated via Internet access, but system registration with OJD would be required, and payment-for-documents would be required.

Result: Documents not retrievable in a web-based search (e.g., Google); however, OJD would make documents available in accessible, electronic format to registered system users (then subject to easy “downstream” dissemination).

“Protected Information” means identified points of information that, depending on the case type and document type, (1) must be set out in a segregated document or the complete version of a redacted document, with an appropriate document label; that then (2) would be made available through remote electronic access to only some (but not all) registered system users. Examples of “protected information” include social security numbers, bank account numbers, names of minors, and full birth date; examples of documents that qualify as “protected information” are social security cards, birth certificates, and check images. Defined in new draft UTCR 2.100(2)(b)(i), (b)(ii), and (c); cross-referenced in draft UTCR ch 22.

“Over-the-Counter Access” v. “Remote Electronic Access,” Overview: Any document that is confidential (i.e., available to only parties or

even fewer than all parties/lawyers of record) or sealed, and documents in confidential cases (ex: adoption, juvenile, civil commitment, or other sealed cases) would not display on public courthouse terminals and should display through remote electronic access to only the registered system users who are permitted to view the document.

Otherwise, most documents that are available over the counter also should be available to any registered system user through remote electronic access.

Four “exceptions” to the foregoing general rule -- instances in which remote electronic access to “public” document would be limited: “Protected Information” that has been segregated or redacted

under UTCR Chapter 22; Documents protected against public Internet disclosure under the

federal Violence Against Women Act, 18 USC section 2265(d)(3); Party- and third-party-filed documents in domestic relations,

probate, and tax cases; and Additional particular documents in certain case types (largely,

criminal and domestic relations) that the Law & Policy Work Group recommends be limited through remote electronic access.

Protected Information Includes: Full Numbers

social security driver license/state I.D. card passport/U.S. I.D. active credit/debit, bank or financial account taxpayer/employer/business I.D.

Other Personal Identifiers names of minors (exception--remanded juvenile defendants) full birth date

Documents social security card birth certificate/certificate of live birth (unless DOB truncated/concealed) receipt with check image (unless account number truncated/concealed) list of inventory/assets/liabilities that includes reference to active credit/debit,

and/or bank/financial account number (full number) photograph of natural person material that filer considers obscene/sexually explicit

In Criminal Cases, also includes: Defendant contact information Victim name and contact information Witness name and contact information Juror name and contact information

Segregation/Redaction of Protected Information If protected information must be included in a court document, then

filer must protect such information about another person, and may protect such information about himself/herself.

Two options for protection, generally: Segregation: Filer includes protected information on a separate page,

separately labeled as a “UTCR ch 22 Segregated Document.” Redaction: Filer submits two versions of the filing, labeled as a “UTCR ch

22 Complete Version” that contains the protected information, and a “UTCR ch 22 Redacted Version,” that redacts the protected information. (Redaction is encouraged only when a segregated document is not practical under the circumstances, ex: if segregation would render the document unreadable.)

Additional option for numbers: Truncated numbers (last four digits) may be used in lieu of segregation or

redaction. Above requirements apply to filed documents in civil/criminal cases. Filers are encouraged to omit protected information from court

documents, unless necessary to the document. Courts also should avoid including protected information in court

orders, letter opinions, and judgments whenever possible; if protected information must be included, courts also must protect using segregation/redaction (in civil, criminal, dom rel, probate, tax). Parties must protect when submitting proposed orders/judgments.

Limited Disclosure of Documents Containing Protected Information Through Remote Electronic Access

UTCR chapter 22 “Segregated” documents and “Complete Version” documents would be available through remote electronic access to the following registered system users:

Parties/Lawyers of Record OSB Members (except in Tax cases, per Tax Group recommendation) Government/Justice Partners In Civil and Criminal cases, private investigators and professional

journalists (definitions for each in UTCR chapter 22).

UTCR chapter 22 “Segregated” documents and “Complete Version” documents would not be available through remote electronic access to the following registered system users:

Registered Public Users Private investigators and professional journalists in cases other than civil

or criminal cases

Federal Violence Against Women Act (“VAWA”): 18 USC section 2265(d)(e): A state “shall not make available publicly

on the Internet” any information regarding a “protection order,” if such publication would be likely to publicly reveal the identity or location of the party protected under such order.

“Protection Order” broadly defined, section 2266(5): “any injunction, restraining order, or any other order issued by a civil or criminal

court for the purpose of preventing violent or threatening acts or harassment against, sexual violence or contact or communications with or physical proximity to, another person * * * so long as any civil order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection”; and

“any support, child custody or visitation provisions, orders, remedies, or relief issued as part of a protection order, restraining order, or stay away injunction per * * * law authorizing the issuance of protection orders, restraining orders, or injunctions for the protection of victims of domestic violence, dating violence, sexual assault, or stalking.”

Following case types treated as “VAWA” cases in UTCR chapter 22: Family Abuse Prevention Act (FAPA) Elderly Persons and Persons with Disability Abuse Prevention Act (EPPDAPA) Civil stalking order protective cases Criminal violation of court’s stalking protective order cases Cases initiated by registration of protective order or related judgment rendered

in another jurisdiction

Documents in other case types also may fall within scope of VAWA.

Limited Disclosure of Case Types and Documents Subject to VAWA Through Remote Electronic Access

Documents in VAWA case types, and other certain documents (ex: release agreements, orders containing no-contact provisions) would be available through remote electronic access to the following registered system users:

Parties/Lawyers of Record In Criminal cases, public law enforcement agencies, Department of

Corrections, and Board of Parole and Post-Prison Supervision

Documents in VAWA case types, and other certain documents (ex: release agreements, orders containing no-contact provisions) would not be available through remote electronic access to the following registered system users:

Registered Public Users OSB Members Any other “Authorized User, with the criminal case exception set out

above.

Party- and Third-Party-Filed Documents in Domestic Relations, Probate, and Tax Cases:

Rationale justifying limited availability: “Protected Information” appears pervasively in such documents; significant

burden if filers were required to redact or segregate the information; Such documents frequently contain additional information that, while not

qualifying as “protected information,” nonetheless is unusually personal or private information that should not be broadly disclosed through remote electronic access; and

Significant percentage of cases involve self-represented litigants, who are not as likely as lawyers to regularly or fully comply with the UTCR chapter 22 redaction-segregation rules.

Such documents would be available through remote electronic access to the following registered system users:

Parties/Lawyers of Record OSB Members Other Authorized Users as appropriate (ex: Child Support Division, when

applicable)

Such documents would not be available through remote electronic access to the following registered system users:

Registered Public Users

Particular Documents That Regularly Contain Protected or Other Sensitive Information Rationale for limited availability: Such documents regularly contain

“protected information” or related sensitive information.

Examples include: Signed verdict forms (protect names of jurors) Search warrants (potential defendant contact info; bank accounts, etc.) Subpoenas (defendant, witness contact info) Citations (driver license number, DOB) Criminal Cases, letters received by the court (participant contact info) Parenting plans (particular child information, including custody exchanges) Domestic Relations Cases, DCS Worksheets (personal data) Domestic Relations Cases, Documents filed under UTCR 8.010 (personal data)

Such documents would be available through remote electronic access to the following registered system users:

Parties/Lawyers of Record OSB Members (except DCS Worksheets and UTCR 8.010 filings) Other Authorized Users as appropriate/applicable (in Criminal cases, would

include private investigators and professional journalists)

Such documents would not be available through remote electronic access to the following registered system users:

Registered Public Users

User Views Basic Public View: Free-Internet-based View, including case title,

case number, next scheduled event and, if any, amount of financial obligation owing the State of Oregon.

Registered Public User View: View of most documents in civil and criminal cases, and most court-issued documents in domestic relations, probate, and tax cases. Excludes view of confidential/ sealed documents and documents in adoption, juvenile, civil commitment, and VAWA-type cases. Excludes “Ch 22 Segregated” and “Ch 22 Complete Version” documents, and other documents noted earlier.

Authorized User View (Includes OSB Members, Governmental Partners, as applicable to case type): In addition to documents available through Registered Public User View, includes most filed documents in domestic relations, probate, and tax cases, and also “Chapter 22 Segregated” and “Ch 22 Complete Version” documents.

Parties-Only View: Permits parties and lawyers of record to view documents not available to other uses (unless sealed, adoption, post-judgment civil commitment, or other-side-only)

Limited-Party Only; Attorney-Only: Additional view of documents available to this “side” only, or this lawyer only.

Availability of Documents through Remote Electronic Access – Timing Goal: Limit broad availability of electronic documents until

responding party has opportunity to review the document for compliance with UTCR Chapter 22 and, if desired, move for protection of personal information inappropriately included.

For parties and lawyers of record, OSB members, and (depending on case type) professional journalists, immediate availability

For other Authorized Users and Registered Public Users, available as follows:

Non-criminal/violation case: 30 days following date of filing of proof of service (initiating document) on defendant; if multiple defendants, 30 days following earlier of (1) date of filing of proof of service (initiating document) on all defendants; (2) appearance by all defendants; or (3) combination thereof.

Criminal/violation case: (1) 30 days following arraignment/appearance on one or more charges; (2) 30 days following first scheduled date of arraignment/appearance or, if multiple defendants; (3) 30 days following first scheduled arraignment/appearance of first codefendant to be arraigned/appear.

14 days following date of filing of proof of service of any document other than an initiating document.

14 days following the date of entry of a court-issued document.

Court has discretion to make document available through remote electronic access earlier or later.

CONSIDERATIONS Complexity

Many complexities in the recommendations are compelled by existing law, some are not. Alternative approaches must continue to conform with existing law, where applicable. Also, programming/cost complexities, and management/use (court staff and customers) must be considered. Complexity also may affect timing/rollout issues (issue for governance discussion).

Broad Access v. Risk of Inadvertent Disclosure Oregon eCourt is intended to broaden public access to the courts, including to

court documents; OSB members and other stakeholders anticipate fairly broad remote electronic access to most court documents.

The more documents that OJD plans to make available via remote electronic access, particularly to a broad group of users, the greater the likelihood of an erroneous disclosure (errors in labeling, court processing, programming, etc.).

Also, the more complex the rules, the greater likelihood of error.

“Public” Documents v. Unlimited Electronic Document Availability Does not necessarily follow from the “public” nature of a case file document

that OJD should provide unlimited or otherwise broad remote electronic access to that document (depending on the contents).