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Ohio Supreme Court Rule Amendment Court Records Access 2008

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AMENDMENTS TO THE
RULES OF SUPERINTENDENCE FOR THE COURTS OF OHIO

Amendments to Rules 44 – 47 of the Rules of Superintendence for the Courts of
Ohio were adopted by the Court and become effective May 1, 2009. The history of these
amendments is as follows:
November 19, 2007

Initial publication for comment

August 18, 2008

Publication for second public comment

December 15, 2008

Final adoption by conference

May 1, 2009

Effective date of proposed amendments

RULES OF SUPERINTENDENCE FOR THE COURTS OF OHIO
***
Sup. R. 44.

Court Records - Definitions.

In addition to the applicability of these rules as described in Sup. R. 1, Sup. R. 44 through
47 apply to the Supreme Court.
As used in Sup. R. 44 through 47:
(A)
“Actual cost” means the cost of depleted supplies; records storage media
costs; actual mailing and alternative delivery costs, or other transmitting costs;
and any direct equipment operating and maintenance costs, including actual costs
paid to private contractors for copying services.
(B)
“Court record” means both a case document and an administrative
document, regardless of physical form or characteristic, manner of creation, or
method of storage.
(C)(1) “Case document” means a document and information in a document
submitted to a court or filed with a clerk of court in a judicial action or
proceeding, including exhibits, pleadings, motions, orders, and judgments, and
any documentation prepared by the court or clerk in the judicial action or
proceeding, such as journals, dockets, and indices, subject to the exclusions in
division (C)(2) of this rule.
(2)

The term “case document” does not include the following:

(a)
A document or information in a document exempt from
disclosure under state, federal, or the common law;
(b)

Personal identifiers, as defined in division (H) of this rule;

(c)
A document or information in a document to which public
access has been restricted pursuant to division (E) of Sup. R. 45;
(d)
Except as relevant to the juvenile’s prosecution later as an
adult, a juvenile’s previous disposition in abuse, neglect, and
dependency cases, juvenile civil commitment files, postadjudicatory residential treatment facility reports, and postadjudicatory releases of a juvenile’s social history;
(e)
Notes, drafts, recommendations, advice, and research of
judicial officers and court staff;
(f)
Forms containing personal identifiers, as defined in
division (H) of this rule, submitted or filed pursuant to division
(D)(2) of Sup. R. 45;
(g)
Information on or obtained from the Ohio Courts Network,
except that the information shall be available at the originating
source if not otherwise exempt from public access.
(D)
“Case file” means the compendium of case documents in a judicial action
or proceeding.
(E)
“File” means to deposit a document with a clerk of court, upon the
occurrence of which the clerk time or date stamps and dockets the document.
(F)
“Submit” means to deliver a document to the custody of a court for
consideration by the court.
(G)(1) “Administrative document” means a document and information in a
document created, received, or maintained by a court that serves to record the
administrative, fiscal, personnel, or management functions, policies, decisions,
procedures, operations, organization, or other activities of the court, subject to the
exclusions in division (G)(2) of this rule.
(2)
The term “administrative document” does not include the
following:
(a)
A document or information in a document exempt from
disclosure under state, federal, or the common law, or as set forth
in the Rules for the Government of the Bar;

(b)

Personal identifiers, as defined in division (H) of this rule;

(c)
A document or information in a document describing the
type or level of security in a court facility, including a court
security plan and a court security review conducted by a local
court, the local court’s designee, or the Supreme Court;
(d)
An administrative or technical security record-keeping
document or information;
(e)
Test questions, scoring keys, and licensing, certification, or
court-employment examination documents before the examination
is administered or if the same examination is to be administered
again;
(f)
Computer programs, computer codes, computer filing
systems, and other software owned by a court or entrusted to it;
(g)
Information on or obtained from the Ohio Courts Network,
except that the information shall be available at the originating
source if not otherwise exempt from public access;
(h)
Data feeds by and between courts when using the Ohio
Courts Network.
(H)
“Personal identifiers” means social security numbers, except for the last
four digits; financial account numbers, including but not limited to debit card,
charge card, and credit card numbers; employer and employee identification
numbers; and a juvenile’s name in an abuse, neglect, or dependency case, except
for the juvenile’s initials or a generic abbreviation such as “CV” for “child
victim.”
(I)

“Public access” means both direct access and remote access.

(J)
“Direct access” means the ability of any person to inspect and obtain a
copy of a court record at all reasonable times during regular business hours at the
place where the record is made available.
(K)
“Remote access” means the ability of any person to electronically search,
inspect, and copy a court record at a location other than the place where the record
is made available.
(L)
“Bulk distribution” means the distribution of a compilation of information
from more than one court record.

(M)(1) “New compilation” means a collection of information obtained through
the selection, aggregation, or reformulation of information from more than one
court record.
(2)
The term “new compilation” does not include a collection of
information produced by a computer system that is already programmed to
provide the requested output.
Sup. R. 45.
(A)

Court Records – Public Access.

Presumption of public access
Court records are presumed open to public access.

(B)

Direct access
(1)
A court or clerk of court shall make a court record available by direct
access, promptly acknowledge any person’s request for direct access, and respond
to the request within a reasonable amount of time.
(2)
Except for a request for bulk distribution pursuant to Sup. R. 46, a court or
clerk of court shall permit a requestor to have a court record duplicated upon
paper, upon the same medium upon which the court or clerk keeps it, or upon any
other medium the court or clerk determines it can be reasonably duplicated as an
integral part of its normal operations.
(3)
A court or clerk of court shall mail, transmit, or deliver copies of a
requested court record to the requestor within a reasonable time from the request,
provided the court or clerk may adopt a policy allowing it to limit the number of
court records it will mail, transmit, or deliver per month, unless the requestor
certifies in writing that the requestor does not intend to use or forward the records,
or the information contained in them, for commercial purposes. For purposes of
this division, “commercial” shall be narrowly construed and does not include
news reporting, the gathering of information to assist citizens in the understanding
of court activities, or nonprofit educational research.
(4)
A court or clerk of court may charge its actual costs incurred in responding
to a request for direct access to a court record. The court or clerk may require a
deposit of the estimated actual costs.

(C)

Remote access
(1)
A court or clerk of court may offer remote access to a court record. If a
court or clerk offers remote access to a court record and the record is also
available by direct access, the version of the record available through remote
access shall be identical to the version of the record available by direct access,
provided the court or clerk may exclude an exhibit or attachment that is part of the
record if the court or clerk includes notice that the exhibit or attachment exists and
is available by direct access.
(2)
Nothing in division (C)(1) of this rule shall be interpreted as requiring a
court or clerk of court offering remote access to a case document in a case file to
offer remote access to other case documents in that case file.
(3)
Nothing in division (C)(1) of this rule shall be interpreted as prohibiting a
court or clerk of court from making available on a website any court record that
exists only in electronic form, including an on-line journal or register of actions.

(D)

Omission of personal identifiers prior to submission or filing
(1)
When submitting a case document to a court or filing a case document
with a clerk of court, a party to a judicial action or proceeding shall omit personal
identifiers from the document.
(2)
When personal identifiers are omitted from a case document submitted to a
court or filed with a clerk of court pursuant to division (D)(1) of this rule, the
party shall submit or file that information on a separate form. The court or clerk
may provide a standard form for parties to use. Redacted or omitted personal
identifiers shall be provided to the court or clerk upon request or a party to the
judicial action or proceeding upon motion.
(3)
The responsibility for omitting personal identifiers from a case document
submitted to a court or filed with a clerk of court pursuant to division (D)(1) of
this rule shall rest solely with the party. The court or clerk is not required to
review the case document to confirm that the party has omitted personal
identifiers, and shall not refuse to accept or file the document on that basis.

(E)

Restricting public access to a case document
(1)
Any party to a judicial action or proceeding or other person who is the
subject of information in a case document may, by written motion to the court,
request that the court restrict public access to the information or, if necessary, the
entire document. Additionally, the court may restrict public access to the
information in the case document or, if necessary, the entire document upon its
own order. The court shall give notice of the motion or order to all parties in the
case. The court may schedule a hearing on the motion.

(2)
A court shall restrict public access to information in a case document or, if
necessary, the entire document, if it finds by clear and convincing evidence that
the presumption of allowing public access is outweighed by a higher interest after
considering each of the following:
(a)

Whether public policy is served by restricting public access;

(b)
Whether any state, federal, or common law exempts the document
or information from public access;
(c)
Whether factors that support restriction of public access exist,
including risk of injury to persons, individual privacy rights and interests,
proprietary business information, public safety, and fairness of the
adjudicatory process.
(3)
When restricting public access to a case document or information in a case
document pursuant to this division, the court shall use the least restrictive means
available, including but not limited to the following:
(a)
Redacting the information rather than limiting public access to the
entire document;
(b)
Restricting remote access to either the document or the information
while maintaining its direct access;
(c)
Restricting public access to either the document or the information
for a specific period of time;
(d)
Using a generic title or description for the document or the
information in a case management system or register of actions;
(e)

Using initials or other identifier for the parties’ proper names.

(4)
If a court orders the redaction of information in a case document pursuant
to this division, a redacted version of the document shall be filed in the case file
along with a copy of the court’s order. If a court orders that the entire case
document be restricted from public access, a copy of the court’s order shall be
filed in the case file. A journal entry shall reflect the court’s order. Case
documents ordered restricted from public access or information in documents
ordered redacted shall not be available for public access and shall be maintained
separately in the case file.

(F)
Obtaining access to a case document that has been granted restricted public
access
(1)
Any person, by written motion to the court, may request access to a case
document or information in a case document that has been granted restricted
public access pursuant to division (E) of this rule. The court shall give notice of
the motion to all parties in the case and, where possible, to the non-party person
who requested that public access be restricted. The court may schedule a hearing
on the motion.
(2)
A court may permit public access to a case document or information in a
case document if it finds by clear and convincing evidence that the presumption
of allowing public access is no longer outweighed by a higher interest. When
making this determination, the court shall consider whether the original reason for
the restriction of public access to the case document or information in the case
document pursuant to division (E) of this rule no longer exists or is no longer
applicable and whether any new circumstances, as set forth in that division, have
arisen which would require the restriction of public access.
Sup. R. 46.
(A)

Court Records - Bulk Distribution.

Requests for bulk distribution and new compilations
(1)

Bulk distribution
(a)
Any person, upon request, shall receive bulk distribution of
information in court records, provided that the bulk distribution does not
require creation of a new compilation. The court or clerk of court shall
permit the requestor to choose that the bulk distribution be provided upon
paper, upon the same medium upon which the court or clerk keeps the
information, or upon any other medium the court or clerk determines it
can be reasonably duplicated as an integral part of its normal operations,
unless the choice requires a new compilation.
(b)
The bulk distribution shall include a time or date stamp indicating
the compilation date. A person who receives a bulk distribution of
information in court records for redistribution shall keep the information
current and delete inaccurate, sealed, or expunged information in
accordance with Sup. R. 26.

(2)

New compilation
(a)
A court or clerk of court may create a new compilation customized
for the convenience of a person who requests a bulk distribution of
information in court records.

(b)
In determining whether to create a new compilation, a court or
clerk of court may consider if creating the new compilation is an
appropriate use of its available resources and is consistent with the
principles of public access.
(c)
If a court or clerk of court chooses to create a new compilation, it
may require personnel costs in addition to actual costs. The court or the
clerk may require a deposit of the estimated actual and personnel costs to
create the new compilation.
(d)
A court or clerk of court shall maintain a copy and provide public
access to any new compilation. After recouping the personnel costs to
create the new compilation from the original requestor, the court or clerk
may later assess only actual costs.
(B)

Contracts with providers of information technology support
A court or clerk of court that contracts with a provider of information technology
support to gather, store, or make accessible court records shall require the
provider to comply with requirements of Sup. R. 44 through 47, agree to protect
the confidentiality of the records, notify the court or clerk of court of all bulk
distribution and new compilation requests, including its own, and acknowledge
that it has no ownership or proprietary rights to the records.

Sup. R. 47.
(A)

Court Records – Application, Remedies, and Liability.

Application
(1)
The provisions of Sup. R. 44 through 47 requiring redaction or omission of
information in case documents or restricting public access to case documents shall
apply only to case documents in actions commenced on or after the effective date
of this rule. Access to case documents in actions commenced prior to the
effective date of Sup. R. 44 through 47 shall be governed by federal and state law.
(2)
The provisions of Sup. R. 44 through 47 requiring omission of information
in administrative documents or restricting public access to administrative
documents shall apply to all documents regardless of when created.

(B)

Denial of public access - remedy
A person aggrieved by the failure of a court or clerk of court to comply with the
requirements of Sup. R. 44 through 47 may pursue an action in mandamus
pursuant to Chapter 2731. of the Revised Code.

(C)

Liability and immunity
Sup. R. 44 through 47 do not affect any immunity or defense to which a court,
court agency, clerk of court, or their employees may be entitled under section 9.86
or Chapter 2744. of the Revised Code.

(D)

Review
Sup. R. 44 through 47 shall be subject to periodic review by the Commission on
the Rules of Superintendence.

***

Sup. R. 99.

Effective Date.
***

(II)
The amendments to Sup. R. 44 through 47 adopted by the Supreme Court on
December 15, 2008 shall take effect on May 1, 2009.

 

 

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