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Aug. 18, 2008
Supreme Court Releases Revised Proposed Rule Amendments Addressing Access to Court Records

The Supreme Court of Ohio will accept a second round of public comment on several revised proposed amendments to the Rules of Superintendence for the Courts of Ohio addressing access to court records. This round of comment on proposed rules 44 through 47 will end Sept. 17.

The proposed rules represent the first time the rules have addressed public access to court records. The language for the new proposed rules is based in part on the report and recommendations of the Privacy and Public Access Subcommittee of the Supreme Court’s Advisory Committee on Technology and the Courts, a subcommittee that included members of the public and the media.

The rules were originally published Nov. 16, 2007. Based on the feedback received during the first public comment period, the commission met on June 27, 2008, and considered revisions designed to strengthen the rules by ensuring continued public access to court documents while still protecting individual privacy.

Proposed rules 44 through 47 apply specifically to court records, although in many respects they are similar to the Ohio Public Records Law. The rules propose that court records are presumed open to public access unless otherwise exempt as particularly specified. The proposed rules include: 

• Definitions of case document, administrative document, case file and other terms.
• Modifications to the current process of sealing court records. The proposed rules put into place a process by which a court can consider whether to allow limited public access to a case document or information in a case document upon request by a party to a case after determining whether the presumption of public access is outweighed by a higher interest.
• The proposed rules also create a process by which any person may request access to a case document or information in a case document that has been granted limited public access. Currently when an entire record is sealed, no part of the record is accessible to the public, nor can it be petitioned to be accessible.
• A provision calling for partial redaction or omission of personal identifiers or personal information that might contribute to identity theft from case information before a document or other item is filed with a court or a clerk of court. The rules also propose that a clerk of court may provide a form for the recording of information to which there is no public access. The court and parties would continue to have full access to this information.

The amendments proposing the new rules were submitted after nearly two years of research by the Commission on the Rules of Superintendence, which makes recommendations to the Supreme Court regarding the rules that govern all Ohio courts. Based upon the comments received during the first public comment period the Court has revised the original proposed rules. The commission will consider the comments submitted and whether further revision is necessary to the proposed rules at future meetings.

Upon the adoption by the Supreme Court, the rules become effective, and do not need to be submitted to the Ohio General Assembly for review. The Commission consists of 20 members, including representatives of the various judges associations, attorneys, magistrates, clerks of court, and court administrators. The commission is chaired by Supreme Court Justice Judith Ann Lanzinger.

Some of the major differences between the original language and revised proposed language are summarized below:

• Adding a statement that “court records are presumed open to public access.”
• Changing language to allow the last four digits of Social Security numbers and full dates of birth to be accessible.
• Adding “actual cost” language to allow clerks to charge their actual costs in reproducing or transmitting the records, which mirrors the Public Records Law.
• Adding a “clear and convincing” evidence standard to be used to determine if public access is outweighed by higher interest.
• Noting that “remote access” to all records is not necessary.
• Noting that it’s not necessary to produce hard copies of documents that are kept solely electronically.

 For complete language of the proposed rule amendments, please visit: http://rules.supremecourtofohio.gov/rules. Comments on the proposed amendments should be submitted in writing to: Jo Ellen Cline, Legislative Counsel, Supreme Court of Ohio, 65 South Front Street, 7^th Floor, Columbus, Ohio 43215, or clinej@sconet.state.oh.us.

Contact: Chris Davey or Bret Crow at 614.387.9250.