In a case decided yesterday, the Oklahoma Supreme Court struck a drastic blow to the public’s right to access court documents online. It’s a real shame, because Oklahoma has been a leader in getting its court system online. The Oklahoma State Courts Network (OSCN) is one of the best in the nation, and has been a model other states have attempted to reproduce.

There were two issues decided. The first deals with redacting certain personal information from court documents. I have no quarrels with that part of the decision. WynnBlog readers will note that I voluntarily redact certain information from court documents I post here (for example, many of the Tywone Parks documents were released with his social security number, which I redacted). There might be some need for further discussion about exactly what information should and should not be redacted, but I leave that for another day. (I will also say that as a process server, I find court documents invaluable for helping to locate persons who would rather not be found.)

The real blow to public records is that the Court has, in its order, decided:

…to immediately limit internet public access to court dockets only. The individual pleadings and other recorded documents filed of record in state court actions shall not be publicly displayed on the internet. Court documents may be viewed at the courthouse unless otherwise prohibited by law. (emphasis added)

In a day and age when we’re moving to more and better online access to our government institutions, this step is unnecessary and unwise. Further, if the personal data has been ordered redacted, what is the harm in allowing court documents to be accessible online? Documents in the federal courts are almost all accessible online. Not all of Oklahoma’s district courts post actual documents online, but they were advancing toward that end.

In his her (thanks to Michael Bates) opinion, which concurred on the issue of redaction but dissented on the issue of ceasing online access of records, and with which I heartily agree, Justice Kauger stated (emphasis added, footnotes omitted):

¶4 In this computerized, internet age, courts, with the help and the direction of legislatures, are taking fiscal responsibility by reducing paperwork, reducing copying costs, moving towards electronic filing and electronic transfer of records, and providing the public greater and easier access to information to which it is entitled. Court records are migrating from paper form to electronic form where information may be disseminated in bulk, accessed over the internet, or both. In a step towards this responsibility, the Court recently increased court costs by $15.00 to provide for improved computerization of all 77 county clerk dockets. However, as a result of the Court’s order, not only is the Court taking a giant, thirty year leap backwards to a time when the personal computer was nonexistent, the public is now paying for access to a system which is made inaccessible by the order.

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¶6 The Court is obligated to provide the public with access to court records. The judiciary has long recognized that case file documents, unless sealed or otherwise restricted by statute or court rule, are available at the courthouse for public inspection. The common law right and the presumption of public access to court records relate to the public’s right to monitor the functioning of our courts, thereby insuring quality, honesty, and respect for our legal system. The Oklahoma Open Records Act, 51 O.S. 2001 §§24A.1-24A.29 provides for the public’s right to access to and review of government records. Section 24A.2 provides in pertinent part:

. . .The privacy interests of individuals are adequately protected in the specific exceptions to the Oklahoma Open Records Act or in the statutes which authorize, create or require records. Except where specific state or federal statutes create a confidential privilege, persons who submit information to public bodies have no right to keep this information from public access nor reasonable expectation that this information will be kept from public access; provided, the person, agency or political subdivision shall at all times bear the burden of establishing such records are protected by such a confidential privilege. Except as required by other statutes, public bodies do not need to follow any procedures for providing access to public records except those specifically required by the Oklahoma Open Records Act.

Consequently, court documents are required to be open for inspection, copying and reproduction. Exceptions are made for documents which have been removed from public record by court orders.

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¶10 Oklahoma’s state courts have been consistently ahead of the pack in adapting to the digital age. In the Law Library Journal, Peter Martin called the Oklahoma Supreme Court Network, “. . . without dispute the most comprehensive court-based legal information site in the United States.” In the Journal of Appellate Practice and Process, Lynn Foster wrote that the Oklahoma Supreme Court Network, “. . . represent[s] the cutting edge in technological advances for governments and universities with regard to the dissemination of appellate decisions.” Oklahoma’s state courts website offers access not only to statutes, rules, opinions, and orders, not only to summaries of filings and other docket events for individual cases in our appellate courts and courts of general jurisdiction, but also to digital copies of pleadings at the trial level in certain counties.

***¶13 With the invention of each new method of conveying information, it becomes more difficult for the courts to seal and protect information without the individual cooperation of litigants and members of the Bar. Whether it is a development we welcome, the simple fact is that the tide of new media may not be ignored or dodged. Instead, we should make policy that contemplates this new reality. Given the public’s increasing expectation of governmental transparency and its acclimation to the variety of new media, a strong philosophical distinction between documents available to the public at the courthouse and documents available to the public online becomes harder and harder to maintain. A blanket ban on posting copies of pleadings online, without consultation with the bench, the Bar, or the Legislature is a step too far, especially when in all likelihood we will lift this ban in the near future when we begin operating under a new case management system. If it is intellectually acceptable to post these documents for all counties, how can it be unacceptable to post them for some counties? The ban will not protect the court any further than the new redaction policy and its existing immunity. In fact, this temporary ban will do little more than have the undesirable effect of limiting the public’s access to public information to which it has become accustomed —- and creating a stir.

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¶15 It makes more sense to test our new redaction rules and their effectiveness by continuing to allow a few counties to make documents available online and work out any kinks now rather than to wait until all counties are online and then test the new rules on such a grand scale. Oklahoma was ahead of the game when it came to providing information online; we should remain a pioneer in this regard by requiring redaction and continuing to provide information online. Obviously, case management is being done on a state by state basis. If there were an existing system, every state would be utilizing it. Other states followed Oklahoma’s lead by developing websites and going online. Why would we suddenly want to move to the end of the line to wait and follow other states? This is an egregious example of throwing the baby out with the bath water.

As for now, the baby has been thrown out with the bath water and Oklahoma has taken a giant, thirty-year backward leap. Expect to hear more about this in the coming days.

Hat Tip: NewsOK