Consider this question: In a paper-on-demand court equipped with an Electronic Content Management (ECM) system, when judges record their personal notes in the records, do those notes become subject to release under Public Disclosure laws?

There is a long and well-settled rule providing exception and privilege for personal notes and working papers, but somehow that fact does not seem to prevent a lot of anxiety when courts are considering a move to a paper-on-demand court. For argument’s sake, let’s assume that the answer is “Yes”. 

The reasoning would be that content in the system (the paper analogy would be “in the file”) is a public record which, as a rule, would be disclosable. Most jurisdictions prohibit destruction of public records without express authority to do so. 

Doubts about the legality and precedent of keeping judges’ work confidential do not withstand analysis.  If a judge tears up or deletes his/her notes to start over, would that then be destruction of a public record?   Are erasures and modifications alterations of a public record?  For a really good, recent, analysis, see “Judicial Authority to Limit Access to Court Records in North Carolina“, December, 2011, by Michael Crowell of the UNC School of Government.

This does not mean courts should not carefully review and, if required, modify rules and statutes to make certain there are no unpleasant surprises following transition to a paper-on-demand court.  Also, close attention in the design phase will minimize problems down the road.  The paper-on-demand court environment IS different than the hard-copy environment. The area of Public Records discoverability has wrinkles in the paper-on-demand environment that never arise in the paper world, as anyone who has ever faced a Freedom of Information Act demand knows all too well.

For many access questions, the loss of the effective “security” of practical inaccessibility constitutes a major challenge when moving to an electronic document management system. Modern systems provide robust and reliable ways to assure confidentiality of data and documents at the system level, and provide electronic audit trails which can be used to further enforce compliance.

However, a few more landmines lurk in the work product area. Here the technology and the legal/rule considerations start to mingle. Public Records statutes and rules typically make exceptions for confidential data (social security numbers, personal information, etc.) and documents (Secret Indictments or jury lists, for example) through specific reference. In those cases then, as long as the system can control access, no questions arise.  

Do current statutes/rules exempt court work product from disclosure? And if they do, do they define work product? More and more do, but not all.

A typical statute/rule change to support introduction of electronic records systems in courts involves stating something to the effect that “the Court Record consists of the records, data, and files in the Electronic System”. When that happens, the particular “confidential” data elements and document types will remain safe. The “work product”, though, may be less certain.

Recommended best practice: 1) Ensure that disclosure rules call out both electronic and paper work product as their own non-disclosable category of information; 2) Maintain the non-disclosable work product documents in separate document types from formal court records, with security configuration that prevents viewing by unauthorized system users; and 3) Support electronic document annotations that don’t technically alter the original document and have their own security distinct from the document (A good ECM system will provide an array of document annotation types, including sticky-notes, highlights, circles, lines, arrows, text, etc.). 

Finally, choose a technology partner with solid experience in court integrations who can help you plan thoroughly and thoughtfully to avoid unexpected surprises when transitioning to a paper-on-demand court.

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