Tuesday, March 25, 2008

In an opinion released for publication in the Oklahoma Bar Journal only the Oklahoma Supreme Court withdrew its previous rule change halting online access to Oklahoma Court documents and requiring redaction of much personal information contained in them
The ruling can be found HERE:

While praised by some privacy activists, the ruling was widely criticized by just about everyone involved in the court system from attorneys to reporters who cover the courts. Many attorneys observed that it was going to be nearly impossible to comply with the redaction requirements and other statutory requirements requiring personal information be stated in pleadings. Other attorneys, mostly in Oklahoma County where online document availability has been implemented the most, complained that their fees would have to go up to accommodate the necessity of going to the court house to inspect or check out court documents that were otherwise available online.

The Oklahoma Supreme Court is wrestling with a problem that has no good solution. Identity theft is the fastest growing crime in the nation and information contained in a typical court pleading is a gold mine for a potential identity thief. Further, some people misuse court documents for everything from stalking to revenge to satisfying their morbid curiosity.

However, at the same time there are valid reasons for the public to have access to court documents. I occasionally check out files on cases that I am not involved in, to see how other attorneys handle that type of case. Or, if I am litigating against someone I don't know, I may check out a file or two in similar cases to evaluate their typical case strategy. Reporters have every right to view any court document filed that is not under a protective order as do firms that do background checks for employers.

What is largely missing in this situation is common sense. Hopefully, when new rules concerning public access to court documents are handed down, there will be a provision allowing stiff civil and criminal penalties for misuse of court documents. This is not a new principle. For example, it is not a crime to own a police band radio or to listen to it. But it is a crime to use one and the information gained from it during the commission of another crime. The same principle should apply to the misuse of court documents. Aside from identity thieves, con men, stalkers and the morbidly curious, any nosy meddler in a case can cost the parties hundreds or even thousands of dollars in legal fees by making protective orders and similar legal measures necessary to protect the parties’ legitimate commercial and personal privacy interests.

A monitored access online system requiring valid, verified identification before issuance of a password protected account would go a long way toward tracking who is viewing what information and would leave solid evidence that could be used against the account holder if the information was misused.


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