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Access to Court Records in
Minnesota
Think back to the last hearing you had in
Hennepin, Ramsey, Washington, or Anoka County. Suppose that during
a break, your client leaned over to you at counsel table and whispered
an inculpatory statement. All four of those
counties use something called Court Smart, a digital recording system
with very sensitive microphones. Court Smart surely picked up your
client’s statement. Query:
Can opposing counsel gain access to your client’s statement, voluntarily
made in the courtroom and now audibly recorded in a governmental device
and stored in a governmental building? And where would you go to find
the answer to that query? The answer to the first question,
as you exhale shallowly, is “probably not;”1 and the source of the
answer to the second question lies nestled unobtrusively in the 1,135
pages of the Rules of Court
between the Rules for Mental Commitment and Rules on Paper Size. It
is a laconic and seldom-cited set of prescriptions determining access
to the millions of documents on court computers and in courthouse
filing cabinets with the mouthful-name, Rules of Public Access to
Records of the Judicial Branch (“RPARJB”). Although that hypothetical,
imprudent client may have dodged that particular bullet, your other
clients might have more than a passing interest, in this era of Passportgate,
in whether and to what extent anyone with an internet connection in
his or her home can, from afar, rifle through judicial records about
them. The answer to that (declaratively framed) question is “You betcha! Matters of Record Almost anything submitted to
or generated by the court is accessible by anyone for any reason.2 In addition to pleadings, memoranda and
orders, court records include DNA evidence admitted at trial; tax
returns; corporate proprietary information; ad
hominem attacks in affidavits; salary data; whether a child in
a custody case has ADHD or wets his bed; and deposition testimony
read into the record describing individuals who were not parties to
the case and who, consequently, never had the opportunity to rebut
what the deponent said. The RPARJB governs access to these and other
court records. You may skip the next two paragraphs
if you have no interest in the historical context for these rules,
but Watergate was the midwife to their promulgation. In 1974, in response
to the revelations of government intrusion during the Nixon Administration,
Congress enacted the Freedom of Information Act (“FOIA”),3 and the
Minnesota Legislature enacted the Minnesota Government Data Practices
Act (“MGDPA”).4 The linchpin of the state statute was, and remains,
access—regulating to whom government information is accessible and
under what conditions.5 The MGDPA applied to state
government executive branch agencies, to counties, to municipalities,
to school districts, and to the University of Minnesota.
Because of the doctrine of Separation of Powers, it was unclear
whether the MGDPA also applied to data maintained by the judicial
branch. In 1985, the Legislature resolved that doubt,
at the suggestion of the press, exempting the judiciary from any coverage
by the MGDPA, subject to the adoption of rules governing access to
judiciary records.6 In response to this amendment,
then-Justice John Simonett convened a group
of government officials, judges, and attorneys representing newspapers
and the public to fashion a set of rules for access to records of
the judicial branch. The result of that group’s deliberations was
the original version of the Rules of Public Access to the Records
of the Judicial Branch, promulgated in 1988. Because of the composition
of the group, the rules focused on access but omitted any reference
to the privacy rights of individual data subjects. In 2004, Justice Paul Anderson
convened a new committee to update the RPARJB, owing to the computerization
of records and access to them at courthouse terminals. In 2005, the
Supreme Court promulgated the updated RPARJB, based on the recommendations
of the committee, the majority of whose members were government officials,
judges, or attorneys for the media.7
The revised RPARJB added one
fair information practice protection: There is now a process for correcting
errors in judicial records8 (including an appeal to the state court
administrator if your demand is denied);9
and there are some records to which access is now limited in order
to protect individual privacy: social security numbers; street addresses,
home telephone numbers; financial account numbers; the identities
of jurors and victims of crimes, books you check out from the State
Law Library, and your passport records (State Department contractors,
please take note).10 Additionally, judicial drafts,
law clerk work products, trade secrets, sealed bids, race data, and
copyrighted material are inaccessible to the public.11 Accessing the Records In a strange twist on privacy
protection, some records of the judiciary may not be accessed remotely
but require a physical visit to a courthouse in order to gain access. Those privacy and fair information
practice protections are not as broad as afforded to subjects of data
maintained by executive branch agencies, e.g., the right of an individual to find out if there are records
maintained on him or her12
and the civil equivalent to a Miranda
warning when information is collected.13
Moreover, you can’t sue administrators who negligently disseminate
records that are supposed to be private because they, unlike their
executive branch counterparts, are immune from liability for unintentional
torts.14 If you are more concerned about
accessing someone else’s data rather than protecting yours, the source
of the data will inform how you unlock the entrance: You can access
and download court records from your home computer
if the court generated them15 or if
the records are appellate briefs;16 otherwise, you
can access court records generated by attorneys and litigants, including
exhibits admitted into evidence,17 in the courthouse during
business hours.18 The system is designed so that you can
access any court records from any terminal in any courthouse in the
state.19 It is clear from the deliberations
of the Supreme Court’s advisory committee that the judiciary continues
to struggle with the changes wrought by technology. For example, judges and other court personnel
formed a solid bloc voting against public access to the tapes generated
by Court Smart. Those tapes
may very well be the best record of what has happened in a courtroom. As always, technology evolves
a good deal more rapidly than the law, so scanners, photo-phones,
miniaturized cameras, high performance wireless transmitters, and
who-knows-what’s-next will continue to maintain the tension among the public’s right to know, the individual’s right to privacy,
and the government’s need to carry out its mission.
2 RPARJB, Rule 4, subd. 1. 3 5 U.S.C. §552a. 4 Minn. Stat.
§13.01, et seq. In 1974, this statute was denominated the Data Privacy
Act, but in 1980, when the Legislature heavily amended the law, the
name was changed to the Minnesota Government Data Practices Act in
recognition that it encompassed Fair Information Practices notions,
balancing open records and individual privacy. 5 Gemberling and Weissman, “Data Privacy: Everything
You Wanted to Know About the Minnesota Government Data Practices Act
- From “A” to “Z,” 8 William
Mitchell Law. Rev. 573, 582 (1092). 6 Minn. Stat. §13.90. 7 Justice Anderson reconvened the committee in 2007,
primarily to address the issue of Court Smart digital recordings. 8 Minn. Stat.
§13.90. 9 RPARJB, Rule 9. 10 RPARJB,
Rule 8, subd. 2(b);
Rule 5, subd. 10, 11. 11 RPARJB,
Rule 4, subd. 2(c) and (3); Rule
5, subd. 6-8, 12. 12 Minn. Stat.
§13.03, 04(3). 13 Called the
“Tennessen Warning” after the one of the
law’s original sponsors, State Sen. Robert Tennessen.
Minn. Stat. §13.04, subd.
2. 14 RPARJB, Rule 11. 15 RPARJB,
Rule 8, subd. 2(a). 16 RPARJB,
Rule 8, subd. 2(e)(2). 17 RPARJB,
Rule 8, subd. 5. 18 RPARJB,
Rule 8, subd. 1. 19 2005 Advisory
Comment to Rule 8, RPARJB. GARY A.
WEISSMAN was an attorney for 30 years in Minneapolis, whose practice
included litigation under FOIA and the Minnesota Government Data Practices
Act. By the time this is published he will have retired and will be
on his way to his new domicile in Jackson Hole, WY. |
