High court rules on public availability of records

12/23/2008

COLUMBUS - The Ohio Supreme Court yesterday gave final approval to its first formal policy guiding what court records the public can and cannot see.

The court specifically placed personal identifier information that could be used for identity theft purposes off limits, including full Social Security numbers and bank account numbers.

It also excludes from a public case document certain juvenile records such as prior depositions in abuse and dependency cases, civil commitment files, and post-judgment residential treatment facility and social history reports.

The exception would be when that information later resurfaces in an adult proceeding involving the former juvenile.

Cleveland media lawyer David Marburger said the final rules are not as problematic as those a court committee proposed a year ago, but he said they still set bad precedent.

"This opens the way for broad swaths of closed court records," he said. "The court assumes it has the authority to adopt these rules and amend them later to identify a record solely based on its content that should automatically be kept out of the public domain even if no litigant in a case asks that the record be closed."

The debate began over concerns that the growing practice of courts making records readily available on the Internet would lead to greater instances of identity theft. But that discussion soon evolved into talk of censoring information on paper records kept in courthouses.

The state's open records law does not apply to the judiciary because of the constitutional separation of powers, and court records have generally been considered more open than other government records.

"The average citizen will not observe any change in the way that courts do business under these rules," said Supreme Court spokesman Chris Davey. "As we move forward, time will show whether these rules will serve their purpose. The only way to respond to an argument that the sky is falling is to wait some time, point to the sky, and observe that there is no sky on the ground."

The court voted 6-1 in favor of the rules. The dissenting vote belonged to Justice Paul Pfeifer, who said he feared that by saying which juvenile records are off limits, the court is suggesting that other records are public.

"There are a few heinous crimes committed by juveniles, but most come into court on delinquency and unruly charges," he said.

"They've skipped school or shoplifted and will never again be there.

"Historically, we've tried to treat that far differently than adults and give them a chance to not have this follow them around for the rest of their lives."

The list of records that would be considered off limits was narrowed significantly by a court committee chaired by Justice Judith Lanzinger of Toledo after media organizations, some state agencies, and private detectives who use the information cried foul.

While the new rules specifically note that court records are presumed to be public, it also requires a court to shield records if it determines by clear and convincing evidence that the public's interest is outweighed by a higher interest.

Someone asking a court to reopen a record that's been closed has a similar burden of proof that the higher interest no longer exists.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.