Federal Courts Law Review, Forthcoming
PETER A. WINN, University of Washington School of Law
Under well established law, information in court records is open to the public, but it may be sealed upon a fact-based showing either that the information is not a matter of legitimate public concern or is sufficiently sensitive to need such protection. Under the former paper-based court record system, however, routine violations of these publcity standards were widely tolerated. At the same time, the practical obscurity of paper provided a default privacy benefit for negligently unsealed sensitive information. With the introduction of electonic filing, old improper sealing practices are now increasingly being exposed and criticised; while the dealth of practical obscurity has caused individuals with sensitive information in court files, to be increasingly exposed to harm. This article argues that restoring an appropriate homeostasis to the judicial information eco-system, where legitimate privacy and publicity interests are both protected, does not require replacing established common law standards; but it will require the adoption of new legal procedures, better use of information technologies, and more careful training of judges and lawyers. Ultimately, to properly achieve this goal, the existing common law adversarial system of information mangement will need to be supplemented by a new administrative model.
Source: LSN Information Privacy Law Vol. 2 No. 34, 10/07/2009