Oregon eCourt Law & Policy Work Group – Remote Electronic Access Recommendations

1. Oregon eCourtLaw & Policy Work Group – Remote Electronic Access Recommendations Lisa J. Norris-Lampe Chair, Oregon eCourt Law & Policy Work Group Willamette Valley American Inn of Court Program, November 2012

2. Oregon eCourt Program, Law & Policy Work Group • Oregon eCourt Program • New case management system, digital documents, ePayment, and eFiling in the state circuit courts and Oregon Tax Court. • First pilot court (Yamhill County Circuit Court) in operation, with limited pilot eFiling starting this month; planned statewide completion in 2016. • Eventually, system will include “remote electronic access” by subscribers to many documents maintained in public case files. • Anticipated Oregon eCourt Rollout Schedule • December 2012: Crook/Jefferson & Linn • March 2013: Jackson • August 2013: Clatsop, Columbia & Tillamook • January 2014: Benton & Polk • May 2014: Multnomah • December 2014: Douglas, Josephine, Marion • March-December 2015: Lane & Lincoln; Deschutes, Klamath & Lake; Coos/Curry, Hood River/Wasco/Sherman/Gilliam/Wheeler; Clackamas • March-June 2015: Washington & Tax Ct; Morrow, Umatilla, Wallowa, Union, Grant, Harney, Baker, & Malheur

3. Oregon eCourt Law & Policy Work Group • Collaborative work group that has worked since 2008 to review legal restrictions on document access, evaluate related policy issues, and make recommendations on future remote electronic access rules, including a proposed new Draft Uniform Trial Court Rule Chapter 22 and corresponding amendments to UTCR 2.100 and 2.110. Also has made recommendations on other Oregon eCourt issues, including comprehensive updates to UTCR Chapter 21 (filing and service by electronic means) (now in effect). • Remote electronic access to documents, Key policy debate: Providing broad public access to court documents (by making those documents available for online viewing and purchase); versus Preventing unauthorized or inappropriate disclosure of certain identifying information, to protect against identity theft, financial fraud, and other crime, and otherwise to prevent unnecessarily broad disclosure of certain information. • Draft Uniform Trial Court Rule Chapter 22, encompasses: • Concept of registered user access to most case file documents; • Proposed “user views” relating to access to documents (parties, lawyers of record, OSB members, designated governmental users, and “registered public users”); and • Proposed rules to consistently protect certain personal information.

4. Draft UTCR Chapter 22 – Remote Electronic Access Rec’s • Recommendation: Most documents publicly available at the courthouse also should be available to registered users of the future remote access system. But, Recommended Exceptions: • “Protected Information” in civil and criminal case docs (and possibly others) that has been segregated/redacted under UTCR Chapter 22; • Documents protected against public Internet disclosure by state under federal Violence Against Women Act, 18 USC sec 2265(d)(3); • Likely many documents in domestic relations, probate, and tax cases; and • Additional particular documents in certain case types that regularly contain “protected information.” • “Protected Information” means identified points of information as to which Law & Policy recommends: • must be segregated or redacted from a document otherwise remotely available to “registered public users,” via submission of a segregated document or complete/redacted versions of the document; and • then would be made available through remote electronic access to only some (but not all) registered system users.

5. Segregation-Redaction of “Protected Information”; Draft UTCR Chapter 22 “Protected Information” Includes: • Full Numbers • Social Security (unless SSN required on paternity judgment) • driver license/state I.D. card • passport/U.S. I.D. • active credit/debit, bank or financial account • taxpayer/employer/business I.D. (unless TIN required on civil judgment) • Other Personal Identifiers • names of minors (exception--remanded juvenile defendants) • full birth date (possible exception—criminal defendant DOB set out in jgmt-conviction) • Documents • Social Security card • birth certificate/certificate of live birth (unless DOB truncated/concealed) • receipt with check image (unless account number truncated/concealed) • list of inventory/assets/liabilities that includes reference to active credit/debit, and/or bank/financial account number (full number) • photograph of natural person • material that filer considers obscene/sexually explicit • In criminal and post-conviction cases, and habeas corpus or contempt proceedings related to underlying criminal case, also includes: • Victim name/contact information (unless contempt party/required on crim’l judgment) • Witness name/contact information (unless contempt party/“public officer”/counsel of record) • Juror name/contact information (unless contempt party) (applies in civil cases also)

6. Segregation-Redaction Rules for Protected Information: • Rules apply to any document available to registered public users through remote electronic access, in which “protected information” appears. That is, rules apply to most documents in civil and criminal cases; may apply to some in domestic relations, probate, and tax cases. • If protected information must be included in a court document, then filer must protect such information about another person, and may protect such information about himself/herself. Once protected, neither parties nor court need to “re-protect” in future case documents. • Two options for protection: • Segregation: Filer includes protected information on a separate page, separately labeled as a “UTCR ch 22 Segregated Document.” (Favored) • Redaction: Filer submits two versions of the filing, labeled as a “UTCR ch 22 Complete Version” that contains the protected information, and a “UTCR ch 22 Redacted Version,” that redacts the protected information. (Not favored) • Numbers also may be truncated (last four digits). • Filers are encouraged to omit protected information from court documents, unless necessary to or required in the document by law. • Courts should avoid including protected information in court orders, letter opinions, and judgments; if must include, courts must follow segregation/redaction rules unless an exception applies. • “Chapter 22 Protected Information” documents then would be available to all system users except “registered public users.”

7. Federal Violence Against Women Act (“VAWA”): • 18 USC section 2265(d)(3): A state “shall not make available publicly on the Internet” any information regarding a “protection order,” if such publication would be likely to publicly reveal the identity or location of the party protected under such order. • “Protection Order” broadly defined, section 2266(5): • “any injunction, restraining order, or any other order issued by a civil or criminal court for the purpose of preventing violent or threatening acts or harassment against, sexual violence or contact or communications with or physical proximity to, another person * * * so long as any civil order was issued in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection”; and • “any support, child custody or visitation provisions, orders, remedies, or relief issued as part of a protection order, restraining order, or stay away injunction per * * * law authorizing the issuance of protection orders, restraining orders, or injunctions for the protection of victims of domestic violence, dating violence, sexual assault, or stalking.” • Following case types treated as “VAWA” cases in UTCR chapter 22: • Family Abuse Prevention Act (FAPA) • Elderly Persons and Persons with Disability Abuse Prevention Act (EPPDAPA) • Civil stalking protective order cases (whether initiated by petition or citation) • Cases initiated by registration of protective order or related judgment rendered in another jurisdiction • Punitive contempt – Violation of Restraining Order • Documents in other case types also may fall within scope of VAWA. • Recommendation “VAWA” case types and documents would not be available through remote access to registered public users or OSB Members (if not lawyer of record); would be available to other users.

8. Party- and Third-Party-Filed Documents in Domestic Relations, Probate, and Tax Cases: • Rationale justifying recommended limited availability: • “Protected Information” appears pervasively in such documents; significant burden if filers were required to redact or segregate the information; • Such documents frequently contain additional information that, while not qualifying as “protected information,” nonetheless is unusually personal or private information that should not be broadly disclosed through remote electronic access; and • Significant percentage of cases involve self-represented litigants, who are not as likely as lawyers to regularly or fully comply with the UTCR chapter 22 redaction-segregation rules. • Recommendation: Treat as two categories, “filed” and “court-issued”; permit remote electronic access for all users as to “court-issued” documents (segregation-redaction rules would apply), but limit remote electronic access to “filed” documents to parties/lawyers of record, OSB members, and designated governmental users (excludes registered public users) (segregation-redaction rules would not apply.) • Issue: Treating documents in these case types as categories of “filed” and “court-issued” may not be workable in the new Oregon eCourt system; alternative solutions being considered.

9. Particular Documents That Regularly Contain Protected or Other Sensitive Information • Rationale for recommended limited availability: Documents regularly contain “protected information” or related sensitive information. • Civil (includes habeas corpus, contempt if not punitive-VRO): • Signed verdict forms (protect names of jurors) • Subpoenas (purpose is to make consistent with criminal rec’n, below) • In post-conviction cases, Received letters (protect victim/witness contact info) • Criminal: • Executed, not sealed search warrants (protect potential contact info; bank acct info) • Citations (protect identifying information such as DOB and Driver License No.) • Signed verdict forms (protect names of jurors) • Subpoenas (protect victim, witness contact information) • Received letters (protect victim/witness contact information) • Domestic Relations: • Parenting plans (protect child information, including custody exchanges) • DCS Worksheets and UTCR 8.010(3)-(5) documents (protect identifying information, financial information, other personal data) • Recommendation: Almost all the listed documents would be available via remote electronic access to all users except registered public users. (Additional recommended restrictions re: DCS Worksheets and UTCR 8.010(3)-(5) documents.)

10. Law & Policy Recommendations -- Considerations and Next Steps • Considerations: • Does not necessarily follow from the “public” nature of a case file document that OJD should provide unlimited or otherwise broad remote electronic access to that document (depending on the contents). • The more complex the approach, the greater the cost, and the greater the likelihood for confusion and error. • Prior Actions: • Law & Policy made initial recommendations, including review by OJD-OSB eCourt Task Force (reports available at osbar.org), which the Oregon eCourt vendor now has reviewed, with a feasibility response provided. • Initial version of Draft UTCR Chapter 22 sent out for Public Comment in early 2012 (closed April 2012); Updated draft pending “next steps” below. • Next Steps: • Updated recommendations submitted to Oregon eCourt governance groups for debate and decision. • Once decisions made, final configuration work to be done with vendor. • UTCR to be updated accordingly and adopted out-of-cycle. • Timeline for remote electronic access availability not yet determined.