On February 3, 2016, the Indiana Supreme Court created the “Advisory Task Force on Remote Access to and Privacy of Electronic Court Records” and charged it to assess the benefits and risks of online public access to court records in an age of e-filing. It was no small directive; the Task Force was to serve as the Court’s guide on an uncharted path rife with potential missteps and lacking in trail-markers or guidebooks.
Nevertheless, the Task Force embarked on its journey with enthusiasm. And, after exploring a wealth of information and data, it returned to the Court in September of 2016 and presented a Report of Findings and Recommendations—a map, of sorts, that the Task Force believed shows a path for the Court to follow.
After posting the Task Force report for public comment, the Court reviewed its recommendations and the comments, and on February 7, 2017 issued an order leading Indiana’s trial courts, attorneys, and litigants into the digital age of court records.
Online access for attorneys and parties
For the people most likely to follow this path, though, just getting to the trailhead will be a challenge. For example, a common e-filing question attorneys ask now is, “I e-filed my document, so why can’t I see it on MyCase?” MyCase will show that a document was filed but the document itself cannot be viewed. The same is true for the parties—they can see that an attorney has filed a document in their case but can’t see the document.
And, while counties have public terminals to access e-filed documents, this still requires travel to the courthouse and a copying fee. It is a process that remains unchanged from when documents were paper-filed with no measurable impact on access—it simply extends the concept of “practical obscurity” to a digital medium.
Recognizing this frustration and its impact on the persons bound to walk in these woods, the Court ordered attorneys of record and parties to have online access to documents in their cases. But implementing this order will require extensive software developments—rolled out in steps—as none of the current case management systems allow users to register in a way that distinguishes between user types or a way to verify whether a user is an attorney, an attorney of record, or a party.
The first implementation step will provide attorneys with a registration portal on MyCase, with registration verified through the Roll of Attorneys. These registered attorneys will then have access to see all non-confidential documents in the non-confidential cases displayed on MyCase. The second step will enable MyCase to distinguish between a user who is an attorney and a user who is an attorney of record in a particular case. Attorneys of record will then be allowed to see all documents in their cases—except for any which are sealed—regardless of whether the case is confidential or not.
Finally, a third step of implementation will roll out this same capability to parties. Parties will be able to register on MyCase and, as long as they have a verified email address in their party record in the Odyssey Case Management System, will have online access to all the documents in their case which are not sealed.
On or after March 1, 2017:
- Public Access to Select Civil Orders
- Public Access to Financial Payments
- Public Access to Expungement Cases
On or after May 1, 2017:
Registered Attorney Access
On or after August 1, 2017:
Public Access to Final Orders in Criminal Cases
On or after September 1, 2017:
Registered Attorney of Record Access
On or after November 1, 2017:
Registered Party Access
Online public access to civil court records
But broadening online access to court records beyond availability to attorneys and parties, while necessary and important, presented a significant and perilous challenge. Even in civil cases, there are privacy interests at stake because filings can contain salacious, intimate, and personal details.
The Task Force mapped a measured path, examining the matters typically disclosed in each case type and weighing the risks created to the privacy of litigants against the public benefit of online availability. After doing so, it identified a selection of documents and case types that generally lack controversial or private details and suggested those as stepping stones for the Court to use as it crosses this river.
Following the Task Force’s lead, the Court directed that the public have online access to orders issued in the following civil and administrative case types: infractions; ordinance violations; small claims; civil collections; civil torts; civil plenary cases; mortgage foreclosures; miscellaneous and unsupervised estates; reciprocal support cases; court business records; and, miscellaneous matters.
Similarly, financial payments made in cases listed on MyCase will be posted, because this presents little in terms of controversial information but provides a significant service to parties and attorneys. And, all filings and orders issued in expungement cases—until an expungement petition is granted, at which point the entire case is made confidential—will be made available online because of the strong public interest in expungement proceedings and because little would be revealed that was not already public from the original conviction.
Online public access to criminal court records
An even trickier portion of the path involves the issue of online public access to court records in criminal cases. On one hand, perhaps nowhere is it more important for the government to be transparent than when it accuses, tries, and convicts a citizen of a crime; stripping that citizen of livelihood, reputation, and liberty. Where there might lurk some failure of the process or corrupt action, transparency serves as a backstop—for as Justice Louis Brandeis said of those instances, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
On the other hand, transparency can also present a multitude of threats to public safety officials, witnesses, and the fairness of the criminal justice system itself – particularly if those documents are posted pre-trial or even during trial. For example, a publicly posted warrant could alert the target of an impending search or arrest and risk the destruction of evidence, flight of the accused, or harm to a witness; an order granting a motion to suppress read online by a juror might erode the presumption of innocence and taint the entire trial; the mere publication of charging information can ruin a life even when a defendant is ultimately exonerated.
The Task Force found that the way through this thicket of brambles is a narrow one. “Final orders and judgments” will be available online for public access in the following criminal case types: criminal misdemeanor; classes A – D felonies; levels 1 – 6 felonies; murder; as well as civil post-conviction relief matters. This includes orders and judgments disposing substantively of a case, like judgments of conviction and sentencing orders, and also subsequent orders amending the substantive terms of disposition such as a sentencing modification order. This still allows the disinfecting sunlight of transparency to shine on how and why a person was subjected to the criminal justice process, but mitigates concerns over publication because those risks diminish once a trial is complete and a defendant has either been acquitted or convicted.
We’re not out of the woods yet
The Indiana judicial branch’s journey into the digital universe is far from over. The Task Force is scheduled to meet four times in 2017 to review the outcomes of the Court’s initial steps and consider whether public online access to the remaining case types and categories of court records is feasible and a path worth pursuing. After a year of exploring, though, the forest wilderness certainly feels smaller and less foreboding—but the trees still “go wandering forth in all directions with every wind” and there is still much to do.