Papelera - Paper in Trash can - by Alvimann at Morguefile.com

Government Information Beyond the Executive Branch

This is an incomplete look at the problem of accessing court opinions and legislation online.  I originally started writing this for a paper and presentation related to Freedom of Information but ended up starting over and coming at it a different way.  However, I kept this draft since it captured some of my thoughts and frustrations on the availability of case law.

Canada and the United States both have federal legislation that require government agencies to make their information accessible to the citizens and residents of their respective countries. Both statutes and the supporting regulations focus on the executive branch of the government.

Freedom of information litigation focuses on those events when the government fails to provide information requested under those statutes. In many cases, government departments are proactive in providing summary information through reports, data sets, or other pieces of information published in print or, increasingly, to a government Web site.

Beyond the executive branch, there remain additional challenges to accessing government information. In some cases, the challenges to access are similar to those raised in administrative environments. In other cases, tradition and resources are limiting access to the information that could be made available to the public.

The Judicial Branch

North American judicial branches self-publish their court proceedings.  States and provinces, as well as federal courts, make their decisions available in a variety of forms. The most reliable source for a court (or board or tribunal) decision is the court itself. And as quickly as that, you reach the first hurdle of information access.

A researcher or litigant with information about a particular court case may be able to identify the adjudicator and location in order to get a physical copy of the decision, if it is available. The lack of specific information – or the inability to send someone to physically retrieve the document – may render court decisions inaccessible.

Where Is It

Many legal researchers will assume that the corpus of judicial decisions in any given North American jurisdiction will reside within one of the dozens of online legal information resources available, whether the best known for-profit publishers like Thomson Reuters Westlaw or LexisNexis, or their for-profit and free alternatives, like Fastcase.com, the Canadian Legal Information Institute, or jurisdiction-specific Web sites. In fact, the availability of case law is tiered in such a way that the most influential, and largest, court systems have the greatest coverage, and the least influential or smallest systems have the least.

Take the US Federal system as an example. You will find the US Supreme Court‘s opinions from start to finish in many free and fee-based online databases. Many of these same systems will host the decisions of the Courts of Appeal. Far fewer will have access to the Federal District Courts where the process begins, and where precedent is created even if it is not subsequently reviewed by a higher court.

As you look more closely, you will find that the Federal courts with special jurisdictions are even less likely to be included: the Federal Tax Courts, or the Court of International Trade. The fallback in the Federal system is that many of these courts are accessible, individually, by using the data they upload to the Case Management/Electronic Case Filing (CM/ECF) system. In that way you can access decisions, dockets, and other information generated by the court in relation to specific cases. Like freedom of information requests, you pay a fee for accessing most of the information and it is based on the amount of information you are accessing.

State and provincial courts vary far more widely, with the supreme court and appellate courts providing nearly all of the electronically accessible decisions. Trial courts may not even be generating a physical decision that can be made available electronically, with oral decisions issued and recorded without additional context. Once you get below the trial court level, whether it is a municipal board or some other governmental tribunal, you are unlikely to see these decisions in any online service.

Court Self-Censorship

Courts are responsible for making their decisions available. Unfortunately, this responsibility extends merely to getting the decision into the appropriate folder of record within the court’s system. Beyond that, courts may not make their decisions available or may do so in inconsistent ways. The first threshold is the individual judge who issues the decision.

Many jurisdictions in North America continue to embrace a distinction between a so-called published opinion and one that is unpublished.  The latter was a decision that did not make it into a print law reporter volume, and therefore was essentially non-existent to a legal researcher whose only access point was the print law library. The decision would still have been available if someone had visited that courthouse and been able to access the decision’s physical location. Since the adjudicator makes the initial determination about whether or not to have make the decision available for publication, there may not be any accessible decision beyond the court.

The distinction continues to exist but it ends with inconsistent results. Some electronic databases, particularly the for-profit Westlaw and LexisNexis databases, provide both the published and the unpublished opinions side by side. The onus is on the researcher to know whether, in any given jurisdiction, there is truly a distinction between a published decision or there isn’t.1

Also, an unpublished decisions withheld by the court may still find its way into a database if submitted by a lawyer for one of the parties. This can mean that a decision will appear in one database or another based solely on that lawyer’s motivation.

The easiest route for many courts appears to be to create a relationship with one or more publishers, to upload the decisions selected by the court’s members for distribution, if not publication, and let the publishers decide what to share with the legal community. While lawyers will often have access to one or the other of the two major legal databases, these relationships can create a barrier to access for lawyers, and the general public, who cannot afford or may not be able to license access to this information.

Courts have also created relationships with sites that make their decisions available for free, as with the Canadian Legal Information Institute’s CanLII database. But the decisions are available with strings attached. The courts have shifted the privacy burden to the legal publishers and so the process of removing identifying information is being done, if at all, at the publisher level. Where redaction typically happens by the information provider responding to a Freedom of Information request, this information has slipped out into the wild in relation to personally identifiable information in court documents. A recent survey of decisions within the U.S. Federal Courts PACER database shows that there remain issues with unredacted social security numbers and other information.2

This is surprising because the Federal courts are so large and have more resources available than many smaller jurisdictions. It is sometimes down almost at the court level where the decision on how best to make decisions available appears to be made. If the court system has not implemented something equivalent to CM/ECF or contracted with a provider like Lexum to manage access to the decisions, then access to court documents becomes very uneven. There are similar issues of unevenness with agency responses to information requests, as evidenced by the wide spectrum of response times. However, there is at least a framework aligned with the freedom of information request that can ensure information will be made available if it is not otherwise restricted.

The Legislature

Legislation is more easily accessible because it does not suffer from the same sorts of privacy or government interests that judicial or executive documents may contemplate. Unfortunately, there remain challenges:

  • Statutes are often not published in a codified manner, so the most commonly utilized form of the legislation may only be available from a for profit publisher
  • Current statute may not be the relevant one for the purposes of litigation or legal research, meaning that not only does historic legislation need to be available, it needs to be distinguishable and comparable to the current legislation to understand changes
  • The unused detritus of legislatures needs to be available, including the substance of bills and resolutions that die in committee, or even legislation that is passed by the body but then is never actually enacted, through failure to receive royal assent or some similar prequisite that never occurs.

1  Joseph Gerken covered the issues related to published and unpublished opinions, including the ability of courts to depublish opinions, in his 2004 article A Librarian’s Guide to Unpublished Judicial Opinions, 96 Law Lib. J. 475
http://
www.aallnet.org/products/pub_llj_v96n03/2004-28.pdf

Studying the Frequency of Redaction Failures in PACER, Timothy B. Lee, May 25, 2011, Freedom to Tinker blog. http://www.freedom-to-tinker.com/blog/tblee/studying-frequency-redaction-failures-pacer

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