Would you be concerned if a person sitting at a computer terminal in the privacy of their home could access all records maintained by Washington's court system on your traffic citations, any civil or criminal cases in which you have been a party, including the records from your divorce, and the times you have been a witness or a juror? Would you be concerned if Washington's court system made available all unsealed information about you in all court files in the state to any person requesting it, including the news media? Would you be concerned if, when applying for a job, your perspective employer had, unbeknownst to you, purchased a report from a commercial organization that obtained all the data on you in Washington's court information system and organized it so your prospective employer could use it to evaluate you for a job? All of these factual scenarios are not a futuristic prospect for our Washington State Judicial Information System (JIS).
For the last 4-1/2 years, I have chaired the Oversight Committee supervising the development of Washington's JIS. We have one of the most efficient and effective judicial information systems in the United States, according to independent analysts. Over the years, we have changed our record keeping system for the courts from one that is a mere index of case names with limited disposition data separately maintained at each level of the court system in individual paper files to a unified electronic "person" database consisting of records from all levels of the court system for individuals identified by their date of birth. The Legislature mandated this change in order to insure that individuals with significant histories of drinking and driving or domestic violence did not slip between the cracks from one court to another. At present, our system is still essentially an index system with some additional information maintained regarding the outcome of cases. However, very soon, the JIS will be able to keep in a comprehensive electronic form all court records presently found in individual paper files stored in courthouses around the state. This means, for example, that all the unverified declarations in a family law file about misconduct by one parent or another, detailed financial information submitted in the course of a dissolution, perhaps including social security numbers, traffic records, and information from civil and criminal cases about Washington citizens will soon become easily accessible. These are, after all, public records. This technological change has profound implications for privacy.
JIS was a pioneer in developing a policy to balance public disclosure of court records with personal privacy concerns. Some court records are confidential by legislative mandate. In some instances, judges may exercise discretion by court rule to seal certain court records that are particularly sensitive for the litigants. But generally in recent years, we have come to realize that our disclosure/privacy policy has not kept pace with rapid technological change. People have access to public courts records. But today, these records are more expansive and will be easier to access. Consequently, the JIS Oversight Committee has directed its Data Dissemination Subcommittee to revisit the policy on public disclosure and privacy, and develop a more reasonable balance between these two twin concerns. We held the very first public hearing ever held by Washington's judiciary on this disclosure/privacy policy in Olympia on October 29, 1999. The hearing was very enlightening, making it clear we need to develop an appropriate balance between disclosure of public court records and personal privacy. This is particularly true for certain kinds of court actions where a person must disclose so much of their personal and financial information by law.
Privacy has become a significant issue in both in Olympia and Washington, D.C. Attorney General Christine Gregoire and Representative Jim Kastama have been talking about privacy of consumer records. Similarly, U.S. Representative Jay Inslee has offered legislation on the need for privacy in financial institution records. Very recently, the United States Supreme Court upheld a Congressional act barring states from disclosing personal information drivers must provide to government to obtain a driver's license. The Court also ruled that a state may withhold arrestee information from a commercial firm seeking its disclosure.
At present, a number of media organizations and commercial firms have pressured the JIS Data Dissemination Subcommittee, as well as the Washington Supreme Court, to broaden access to court records. Ironically, a number of those organizations, who are very insistent that all court records be disclosed, have come to realize that privacy of personal information may be of significant public concern. One news organization, for example, editorialized recently that such sensitive personal information as bank account, credit card, and social security numbers should not be routinely disclosed. Those news organizations might be surprised to discover that such information routinely becomes a part of court records in Washington, particularly in the dissolution setting.
The court system must be sensitive to the appropriate balance between disclosure of public records and privacy with respect to very sensitive personal information demanded of individuals using our court system. At a minimum, the JIS Data Dissemination Subcommittee will recommend to the Washington Supreme Court a policy which balances the interests of public disclosure and personal privacy in court-maintained records. I have very strong views about such a policy. Citizens must be aware information they provide to the court system becomes a part of a public record and they should be advised when any such public record is made available to third parties, whether a commercial firm or media organization. The courts must also carefully consider whether certain kinds of information now demanded of litigants, particularly in the family law context, must become part of the court file at all. Not all sensitive information demanded of litigants should necessarily find its way into the public court file. Finally, judges need to be made aware of their authority to seal particularly sensitive court files from public disclosure. This authority now exists and should be used sparingly, but if the personal or financial information disclosed could be misused by third parties, judges should not hesitate to employ this power.
The JIS Data Dissemination Subcommittee, chaired by Judge C. Kenneth Grosse of the Court of Appeals, will develop an appropriate policy for consideration by the Supreme Court on this issue of disclosure and privacy of court records. The public needs to be aware of, and should demand, a sensitive policy that neither forbids all disclosure of records that are, after all, public, nor makes everything in a court file a matter of public information, no matter how damaging to the individual affected.