New York Commission on Public Access to Court Records
May 16, 2003 Public Hearing - Albany
Introductory Remarks from the Chair

Good Morning. I am Floyd Abrams, and I have the honor to chair the New York Commission on Public Access to Court Records. With me today are the distinguished members of the Commission, including Court of Appeals Judge Victoria Graffeo, New York County Clerk Norman Goodman, Stephanie Abrútyn, Elizabeth Bryson, Hugh Campbell, William Farley, Thomas F. Gleason, Richard Griffin, Victor Kovner, David Miranda, Charles Sims, and Gary Spivey.

Chief Judge Judith Kaye empanelled this commission last year to advise the New York State court system on a difficult and vexing issue that arises out of the technological advances of recent years. Judicial records are, as a general proposition, public. As a general matter of state and federal constitutional law, they must be public. What Justice William O. Douglas said 56 years ago remains true today: “A trial is a public event. What transpires in the courtroom is a public event.” The same is true of most court records.

The new advances in technology — the Internet, in particular — now make it easier to disseminate public information than ever before. But the glories of the Internet — the ease of availability of information, the 24/7 availability of information, the unconstrained nature of who may receive the information — also raise potential problems. Can there be too much availability of public records? Should Internet access lead us to take care about what finds its way into public judicial records in the first place?

Announcing the formation of this Commission, Judge Kaye put our task this way: “In keeping with society’s increasing reliance on technology, the court system will begin to make case files available electronically within the next few years. But while providing greater access to this information, we also must be diligent to protect a litigant’s right to privacy. We recognize that court records can contain sensitive information, such as social security and home telephone numbers, tax returns, medical reports and even signatures. I have charged this commission with the hard task of examining any potential pitfalls, weighing the demands of both open access and individual confidentiality, and making recommendations as to the manner in which we should proceed.”

Judge Kaye’s formulation makes it clear that the important questions that this panel has been asked to consider are not easily answered. The purpose of today’s hearing, and the hearings that will follow in Manhattan and Buffalo, is to receive and consider the views of interested individuals and organizations from around the state and, given the prominence of New York, around the country. No state has yet fully come to grips with these issues. We hope to make a contribution by doing so.

To that end, the notice for these hearings set forth several questions that go to the heart of this Commission’s mandate:

1. In light of the recognized public interest that is served by having court case records available for public inspection, are there any privacy concerns that should limit public access to those records on the Internet?

2. Should any information that is currently deemed public be subject to greater restrictions if made available for public access on the Internet by the Unified Court System? For example, are there particular privacy concerns that outweigh open access considerations regarding the disclosure on the Internet of an individual’s Social Security identification number, credit card numbers, bank or investment account numbers or other personal identifying information?

3. If such personal identifying information should not be made available on the Internet, how should that information be eliminated from electronic/Internet availability?

4. If there are any limitations or restrictions to be placed on the dissemination of court records on the Internet, what role should be played by the courts, by attorneys or by others?

5. Should the public be charged a fee to access court case records on the Internet?

6. What information should a member of the public need in order to search case records on the Internet? Should a search require the name of a litigant (or litigants) or should searches be available by topical inquiry or statutory reference?

We are looking forward to hearing from each of today’s speakers on these important questions. As we do so, I think it important to point out at the outset that not all court case records are public. Some examples of records that are not publicly available under New York State law without a court order making them so, are set forth in the hearing notice. They include records in matrimonial matters, child custody proceedings, pre-sentencing reports and memoranda in criminal cases, documents containing HIV-related information or the identity of victims of sexual offenses, and other documents that are filed under seal under New York law. Our mandate is not revisit the laws and policies that provide for confidential treatment of these materials. It is not proposed that these materials will be made available on the Internet or otherwise.

This is the first of three hearings that the Commission will hold this spring. There are many interested people and groups that will not speak today, but will appear at subsequent hearings in New York City or Buffalo. I mention this simply to note that the points of view you will hear today, which are important to the Commission, will be supplemented by comments from other interested groups, who may have a very different take on these issues than what you hear today. At later hearings, we expect to hear from — among others — the New York State Bar Association, the New York State Trial Lawyers’ Association and victims’ rights advocates. The Commission will make transcripts of all three of the hearings available on its website.