Online access for court documents sparks concerns

Janice Tibbetts, Canwest News Service Published: Monday, July 28, 2008

National Post

OTTAWA -- The judges on the Supreme Court of Canada will decide this fall whether to post court documents online, the culmination of years of debate on whether throwing open the electronic doors threatens privacy rights in an era of Internet stalkers and identity thieves.

Courts in several provinces are also considering the prospect of e-access to court files, with British Columbia being the first in the country to go ahead with the venture by allowing the public to access the nitty gritty details of court workings for a $6 fee.

"Once the Supreme Court of Canada sets the standard it is something that will eventually become unanimous," predicted Halifax lawyer Mick Ryan, chair of a Canadian Bar Association committee that has worked with the Supreme Court on its policy.

"Ithink it's inevitable that it will happen because the courts are really concerned about having an open access policy and being transparent."

The Supreme Court has already established the principle of open courts trumps privacy rights and that "covertness is the exception and openness is the rule."

While courts have traditionally allowed public access to their paper files, curious Canadians have had to show up at courthouses and know what they're seeking, a roadblock the legal community widely refers to as the "practical obscurity" of the system as it currently exists.

"I don't think most people would bother to go the courthouse and spend hours pouring over the information," said Toronto family lawyer Judith Huddart. "In theory, it could be done; but in practice, it isn't done."

Posting documents online is raising vigorous debate about whether the often sensitive information in court files, including such things as personal birth dates, business secrets and even copies of tax returns, will make the courts too accessible, given the retrieval power of Internet search engines.

Huddart said that family law files -- which include things such as divorce proceedings and custody disputes -- are of particular concern.

"We are going to have to find a way to address the electronic age, because it's here, in a way that doesn't create an inappropriate invasion of privacy of families and particularly of children," said Ms. Huddart.

In Ontario, for instance, divorcing couples must file personal financial information, including income tax returns that contain social insurance numbers. Also, divorce files often contain bitter allegations that are unproven in court. "There's potential for someone to use and abuse that information in heaven only knows what way," Ms. Huddart said.

Louise Meagher, the Supreme Court's deputy registrar, said the judges will decide this fall whether to adopt a policy that has been years in the making. The policy is modeled on guidelines established three years ago by the Canadian Judicial Council, the body that oversees judges.

That policy endorses the idea of e-access, but suggests restrictions on the information that can be posted in the event it is misused for commercial data mining, identity theft, stalking, harassment and discrimination.

The judicial council advocates banning access to all personal identifiers, and suggests various levels of access, or registered access, depending on the records in question.

The Supreme Court retreated seven years ago from a plan to post court documents online, with Chief Justice Beverley McLachlin citing privacy concerns and a fear that Canadians would avoid the justice system if they knew that the details of their cases would be available on the Internet.

Ms. Meagher said that if the court goes ahead with Internet postings, it will put safeguards in place to protect personal information. Also, the identities of minors, whose names are banned from the public, would be omitted, she said.

The Supreme Court is viewed as a conservative testing ground for online public access, because much of the information contained in factums, which each party must submit outlining legal arguments, are more technical in nature than the more personal information contained in court files in Canada's lower courts.

British Columbia began posting information in civil cases online four years ago, but it excludes public access to divorce files, provincial family law files involving children, and adoption information, among other things.

But there is nothing that stands in the way going online to find out the details of a neighbour's legal dispute with a contractor over a kitchen renovation gone wrong, said Andrew Clark, who administers Court Services Online for the B.C. Attorney General's Department. The courts intend to make criminal files available this fall.

Many Canadian courts, including the Supreme Court of Canada, already post rulings online and they are searchable through a variety of websites.

The Supreme Court of the United States goes even further by putting factums on its website.

But issues have arisen in the U.S. by lower courts posting court files online. An article in WIRED magazine, for instance, cited a case in Minnesota, in which banks used court records to deny home loans to minority applicants.

Also, police reported last December that hundreds of people in five states were victimized by identity theft when their social security numbers were lifted from a municipal court website in Columbus, Ohio.