When Reasonably Accessible is Practically Inaccessible: Digital Stores of Public Records

Many records, including a vast proportion of court records, are “public” records, and must be maintained and made available for reasonable public inspection.  As we see in many aspects of society today, the definition of “reasonable” continues to shift.

Recently the Encyclopedia Britannica announced it will no longer produce a printed edition.  Though I well understand the business reasons behind the decision, I confess to feeling pangs of nostalgia, remembering the innumerable times I went to it over the years, from grade school through college, law school, grad school, and in my professional life.

Encyclopedia Britannica is not going away.  The publisher denies that the end of printing hard bound volumes is due to Google or Wikipedia.  No; the reason is that most users find the digital version of Britannica much more powerful, more current, and easier to use.  And the primary reason is: Full Text Search.  Despite the Encyclopedia Britannica having arguably the best indexing system ever devised for the printed work, Full Text Search provides faster, more direct, and more complete access to document information.

Return to the subject of public records and the changing standards of what constitutes “reasonable accessibility”.  Suppose a court made its records accessible like this:  The records are stored on an island 500 miles off the coast.  There is no airstrip, and no harbor for access.  The records are dropped onto the island by parachute.  To view them, one has to paddle out, and sort through the boxes to find the desired document.  While technically “public”, for all practical purposes the records remain completely inaccessible.

Sound extreme?  Granted, but it  illustrates the principle of “practical inaccessibility”; even though it may be theoretically possible to find information in a record, as a practical matter the information remains completely inaccessible.  If “practical inaccessibility” constitutes failure to comply with requirements for making records public — and recent rulings and trends indicate that is becoming the rule — then the days of paper-based, hard copy court files are numbered.

Already, rules and case law concerning discovery in litigation are well down that path.   Making records available only in hard copy, or even in non-searchable electronic format, does not comply with the discovery requirements if the records can be made available in searchable format.

Think Sarbanes/Oxley.  Can a business shield itself from practical disclosure by printing hard copies and deleting the work copy?   It’s not a long walk to the proposition that rendering documents that at one time were searchable to be no longer easily searchable (say, for example, printing out e-filed documents, then printing them and discarding the electronic, searchable version) would be destroying evidence.

And where the private sector rules are today, public records laws cannot be far behind.  At first we can expect that only the most interesting and valuable public records would be affected.   Oh; by the way: court records are arguably both the most interesting AND the most valuable of all public records.  Just ask the news media.

If you want to avoid these issues, then best practice for Courts is to go digital and stay digital.  If you can’t avoid receiving paper, then turn it into digital content as close to the reception point as possible.  For the paper lovers in the group, printed copies can be provided on demand.  This is what we refer to as the “paper-on- demand court”.

If Courts don’t get out in front of the rule and policy considerations surrounding electronic public records, someone else is liable to do it to for them.

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