Tuesday, December 23, 2008

Ohio Supreme Court Public Access Rules

The Ohio Supreme Court yesterday announced adoption of its rules regarding public access to court records— its first formal policy guiding what court records the public can and cannot see, according to the Toledo Blade—ending, or at least putting on hold for a time, a debate reaching back some six years or more that initial addressed privacy matters & identity theft concerns as more courts began making records available on the Internet. ( Court’s Announcement )

Cleveland lawyer David Marburger told the Blade that the rules were not as problematic as those proposed a year ago, but that they still set a bad precedent. “It opens the way for broad swaths of closed court records,” he said. “The court assumes it has the authority to adopt these rules and amend them later to identify a record solely based on its content that should automatically be kept out of the public domain even if no litigant in a case asks that the record be closed.” Marburger questions the Court’s authority, in the first place, to issue general rules he says go beyond administrative housekeeping to affect litigants’ substantive rights.

Amendments proposing the new rules were submitted after some two years of work and research by the Commission on the Rules of Superintendence, which makes recommendations to the Supreme Court regarding the rules that govern all Ohio courts.

Language for the rules, the Court said, was based in part on the report and recommendations of the Privacy and Public Access Subcommittee of the Supreme Court’s Advisory Committee on Technology and the Courts, a subcommittee that included members of the public and the media. Rules include:

  • Definitions of court record, case document, administrative document, case file and other terms.

  • A process for the sealing of court records. The court can consider whether to allow limited public access to a case document or information in a case document upon request by a party to the case or a person who is the subject of information in the case document only after finding by clear and convincing evidence that the presumption of public access is outweighed by a higher interest.

  • A process by which any person may request access to a case document or information in a case document that has been granted limited public access. Currently when an entire record is sealed, no part of the record is accessible to the public, nor can it be petitioned to be accessible.

  • A provision requiring the partial redaction or omission of personal identifiers, i.e. personal information that might contribute to identity theft, from a case document before the document is submitted to a court or filed with a clerk of court. The rules also state that a court or a clerk of court may provide a form for the recording of personal identifiers omitted from a case document. The court, clerk of court and parties would continue to have full access to this information.

The Court will instruct local court personnel next year in the intricacies familiarizing them with the public access rules.

Rules become effective May 1st. 2009


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