Article published March 15, 2008
Adopting rules on access to public records constitutional, panel says
Court data guidelines taking shape
By JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF
COLUMBUS - Those seeking to shield court documents from public view would have to convince a judge to do so by "clear and convincing evidence,'' an arm of the Ohio Supreme Court agreed yesterday.
Responding to fears it was allowing courts to close records "willy-nilly,'' the panel reversed position on making full dates of birth off-limits, agreed to allow the last four digits of Social Security numbers to be used, and decided to require judges to hold hearings before sealing records.
But the panel dismissed suggestions that the whole process of adopting general rules on what is or is not public record - rather than letting individual judges make those decisions on a case-by-case basis - is unconstitutional.
The Commission on the Rules of Superintendence for Ohio Courts, a panel consisting largely of judges and court officials, will vote June 7 on final recommendations to the state Supreme Court.
"We believe from reading the [public comment received] that there was a misapprehension out there that courts were going to have free rein to just close files willy-nilly, and that wasn't the intent at all,'' said Justice Judith Lanzinger of Toledo, the commission's chairman. "I think it helped us recraft our language to meet what we had intended all along.''
The commission is nearing the end of a process that began several years ago with another committee examining privacy concerns related to the growing practice of making court records available on the Internet.But talk of removing personal information like Social Security numbers and bank account numbers from online records soon expanded into examining what people could look at when they walk through courthouse doors.
"We have to walk a very delicate course as we're trying to develop how to protect the public from identity theft while at the same time trying to provide the public with information that they want to see and view…,'' said Lucas County Clerk of Courts Bernie Quilter, a commission member.
"We don't want to make it easier for the criminals to sit at home and get those Social Security numbers," he said.
In addition to certain personal identifying information, the rules would make some currently public records related to juvenile crime victims, juveniles in detention centers, and other information in juvenile, domestic relations, and probate files off-limits.
"They don't have the constitutional authority to issue rules that govern the public's right to open records,'' said David Marburger, one of the attorneys representing The Blade and other newspapers that have questioned the proposed rules. He was contacted for comment after yesterday's meeting.
"I want to know where the Constitution says the highest court in the state can issue an edict that controls the rights of every individual member of the public in every court,'' he said. "If they can do that, why can't they issue similar rules that govern other constitutional rights?''
The commission yesterday agreed to:
•Add a clause stating that judges asked to close a record begin with the presumption that the record is public.
•Require anyone asking to close a record to prove by "clear and convincing evidence'' that the public's right to access is outweighed by a "higher interest.''
•Require that a judge who is considering such a request hold a hearing before doing so. The prior draft called for a hearing only when someone petitioned to reopen the record after the fact.
•Allow court records to include dates of birth and the last four digits of Social Security numbers. This was partly a nod to concerns of private detectives and licensing agencies that conduct background checks.
•Create an exception to the proposed general rule keeping some records applying to juveniles private if that information is entered into evidence in an unrelated case.
Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.
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