The Open Courts Act and American attitudes on privacy

V. John Ella, BridgeTower Media Newswires

Last year, with little fanfare, Minnesota’s state district courts made it much easier for members of the public to obtain PDF copies of court filings online. This year there is rare bipartisan support in Congress for the Open Courts Act of 2021, which would make public access to federal court filings on its electronic PACER system free as well.  Administrators of the federal court system have pushed back on the Open Courts Act based on fiscal and budget concerns, but nobody has raised concerns of privacy.

Attitudes about privacy differ from country to country as the law partially drives societal attitudes. Americans, for example, feel very strongly about medical privacy. But Americans are generally comfortable with the details of our legal disputes being public. There are valid historical and policy reasons for this divergence. But it is not necessarily based on what we consider most embarrassing or private.

Medical ailments and diagnoses are a popular topic of conversation among people my age. But at least since the passage of the Health Insurance Portability and Accountability Act (HIPAA) in 1996, the privacy of medical records has been considered almost sacred by Americans. Most health care providers have a zero-tolerance policy when it comes to disclosure of health information. During COVID many people complained, mistakenly, that even asking about someone’s vaccine status was a violation of HIPAA (often referred to on Facebook as “HIPPA.”)

Although medical records are very confidential, legal records are the opposite. Our court system is open to the public so that we can know what is happening. American justice does not happen behind a curtain or in a secret star chamber. The U.S. Supreme Court has held that the press, and the public, have a constitutional right to view criminal trials. Our state recently went through a high-profile criminal trial that was broadcast live around the country. Lower courts have extended this right to civil proceedings as well, although the right is not absolute and juvenile proceedings, for example, are largely kept confidential.

A consequence of the open court system is that court filings containing details of the lives of not just of plaintiffs and defendants, but also non-party witnesses, is open to the public. The discovery process routinely allows lawyers to obtain copies of what people said in otherwise private emails. Depositions of witnesses can touch on wide-ranging topics, including matters that might otherwise be considered private. These include family relationships, extramarital affairs, reasons for employment discipline and termination, alcohol and drug use, criminal prosecutions, financial status, earnings, bankruptcies, and even medical information. Not all information obtained in discovery is filed with the court, but much of it is.

Decades ago, in order to view public court filings one would need to physically go to the courthouse. Today you can access them online.  Even video depositions and Zoom hearings end up on the internet. State and federal court filings are not yet searchable in a one-step Google search (unless someone has posted them elsewhere), but this may be only a matter of time. Protective orders can protect some information from becoming public, but usually they are limited to confidential business information and medical records. The only other exception to having disputes aired in public is to agree to private and confidential arbitration.  It is important to keep our justice system open. But as technology catches up with the millions of pages of documents filed in court every year, our collective dirty laundry is going to continue to pile up for all to see on the internet.


V. John Ella practices in the areas of employment law and privacy law at the law firm Trepanier MacGillis Battina P.A. in Minneapolis.