Digital Court Records Access: Time to Take a Fresh Look at Balancing Transparency and Privacy
In his essay “Digital Court Records Access, Social Justice, and Judicial Balancing: What Judge Coffin Can Teach Us,” recently published by the Maine Law Review at the University of Maine School of Law, Pierce Atwood Privacy & Data Security Practice Group Chair Peter Guffin urges the Maine Supreme Judicial Court (SJC) to embrace the rights-sensitive balancing process long-advanced by Judge Frank M. Coffin, former chief judge of the United States Court of Appeals for the First Circuit, one of Maine’s foremost advocates for justice who died in 2009 and whose centennial birth was celebrated last year.
Guffin argues that Judge Coffin’s judicial philosophy, even though the product of a different era, is enduring and, if embraced today by the SJC, would significantly improve the quality and effectiveness of its decision-making process in determining court rules that appropriately balance the rights of the individual against the interests of the state, thus engendering increased public trust and confidence in its decision.
It is critical that the [SJC] get it right in orchestrating the conversion to electronic records because the stakes are exceedingly high for individuals, society, and the Judicial Branch as an institution. If not managed correctly, the SJC risks undermining fundamental democratic values, including liberty and equality, and trampling on the rights of individuals, [disproportionately affecting] the rights of the most vulnerable people in our society, including the unrepresented, minorities, the poor, children, victims of abuse and assault, and geographically disadvantaged.
In his essay, Guffin observes that a consistent theme in Judge Coffin’s life’s work and writings is that the law must continue to evolve to meet the demands of society. Writing about the “hard cases” that present conflicts between the rights of individuals and the interests of the state, Judge Coffin forecast:
[T]here is little likelihood that constitutional analysis in this area will be frozen in crystalline form. Variations of the human predicament, as the individual and society interact, are infinite. New conditions, technology, and laws never cease to make their appearance. State courts are free to probe the meaning and reach of state constitutions. And the Supreme Court itself is subject to change over time.
Predicting that “access to government, including the courts, fairness in institutional proceedings, equality of consideration and treatment, and residual privacy in a crowded world will be increasingly cherished individual objectives,” Judge Coffin argued that “[t]his state of affairs . . . should move us to . . . sensitize our process of balancing individual rights and society’s interests, and to examine ways of preserving our essential social fabric from disintegration by the alienation of large sectors of society.”
Guffin summons up the age-old tenet – that the law must continue to adapt to changes in society – evoked more than a century ago by Samuel Warren and Louis Brandeis in their famous Harvard Law Review essay, The Right to Privacy, which is widely credited as giving birth to the modern common law right to privacy recognized in Maine and most other U.S. states. In Guffin’s view, their call for the law to adapt is as relevant now, if not more so, as it was when their essay was written in 1890:
That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society.
Guffin contends that with the SJC’s soon-to-be digital transformation, the same principle applies today.
He urges the SJC to proceed cautiously and with sensitivity in balancing the rights of the individual against societal interests, given the fast pace of technological innovation and the increasing centrality of personal information in the global economy, coupled with the potential societal costs and individual harms that can come from misuse of such information. In looking afresh at where to draw the line between privacy and transparency in the digital environment, Guffin counsels that the SJC must be steadfast and vigilant in maintaining prevailing social norms and guarding citizens’ reasonable expectations of privacy, if it hopes to preserve the liberty, equality, and other moral values cherished in our democracy. He reminds us
“[o]ur privacy is not simply a privilege derived from our freedom. Far more important, it is an integral element of our liberty, ‘the most comprehensive of rights,’ [and as recognized by Justice Louis D. Brandeis], ‘the right most valued by civilized man.’”
In part one of his essay, “Framing the Issue,” Guffin sets the stage, identifying the key issue to be decided as well as the significant interests at stake. He also describes the SJC’s efforts to study and understand some of the important policy considerations surrounding implementing the new electronic system.
In part two, “Why Judge Coffin?”, Guffin addresses the question as to why Judge Coffin, if he were alive today, would be concerned about the subject of digital court records access. For readers who are not familiar with Judge Coffin, Guffin provides a brief summary of Coffin’s lifelong dedication to advancing the goal of ensuring that all persons, no matter their financial, social, or other circumstances, have meaningful access to justice.
In part three, “Judicial Balancing,” Guffin provides an overview of Judge Coffin’s rights-sensitive approach to decision-making in the “hard cases” involving human rights and civil liberties. He describes the essential qualities of judicial decision-making that “must permeate the [balancing] process” if it is to be fully realized. He also examines each of the key elements of Judge Coffin’s approach for achieving a “fully realized balancing process.”
Finally, in part four, “Bringing Judge Coffin into the Conversation,” Guffin offers a glimpse into how Judge Coffin, if asked, might go about the task of balancing privacy and transparency, with a focus on the social justice and access to justice interests implicated by the transition. He also imagines what questions Judge Coffin might ask and what insights and recommendations he might share. Guffin concludes the essay proposing that the SJC embrace Judge Coffin’s judicial philosophy and use his rights-sensitive balancing process as a guide in managing the transition to electronic records.
“Guffin’s essay is a timely and important work that channels Judge Coffin effectively and does a great job examining the approach taken by the SJC. His use of an imaginary conversation is an inspired vehicle for presenting the issues in true Judge Coffin style. I highly commend its reading to all judges, members of the Bar, and all others who are interested in the difficult privacy and transparency issues that confront us as state court records move from practical obscurity to the brave new digital world.” - Dan Wathen, former Chief Justice, Maine Supreme Judicial Court
With the publication of his essay setting the proper stage, Guffin has relaunched his privacy perspectives blog and is planning a series of posts diving more deeply into some of the more complex issues set forth in his essay.
For questions about digital access to court records, or any other privacy or data security concern, please contact Peter Guffin at 207.791.1199 or firstname.lastname@example.org.