State Court Adm'r v. Background Info. Servs.

Decision Date22 November 1999
Docket NumberNo. 99SC381.,99SC381.
Citation197 Colo. 382,994 P.2d 420
PartiesOFFICE OF THE STATE COURT ADMINISTRATOR, Colorado Judicial Department; and Steven V. Berson, State Court Administrator, Petitioners, v. BACKGROUND INFORMATION SERVICES, INC., Respondent.
CourtColorado Supreme Court

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McClachlan, Solicitor General, Maurice G. Knaizer, Deputy Attorney General, State Services Section, Denver, Colorado, Attorneys for Petitioners.

Pendleton, Friedberg, Wilson & Hennessey, P.C., F. Stephen Collins, Joel W. Cantrick, Denver, Colorado, Attorneys for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

This case concerns a request for release of computer-generated bulk data containing very particularized information about individuals who are parties to criminal or civil cases in the State of Colorado. We conclude that the General Assembly has not evidenced its intent that this data should be unqualifiedly available to the public in bulk form, and absent such intent, the administrative policies of the supreme court control its release. Specifically, we conclude that the General Assembly has enacted various specific statutes that control the release of court record information and has afforded to the courts themselves control over release of the remaining information, pursuant to court order or rule. A Chief Justice Directive operates as such a court order or rule, and therefore, Chief Justice Directive 98-05 permitted the State Court Administrator to deny a request for release of bulk electronic data stored by the Judicial Branch.

I.

The Colorado Judicial Branch is a separate branch of Colorado state government, responsible for the exercise of judicial power and administration of the court system. See Colo. Const. art. VI, § 1. The State Court Administrator (the SCA) is an appointee of the supreme court who administers the judicial system on a day-to-day basis. See Colo. Const. art. VI § 5(3); § 13-3-101(1), 5 C.R.S. (1999). The county courts, district courts, Denver juvenile court, Denver probate court, court of appeals, and supreme court are courts of record within the state. See § 13-1-111, 5 C.R.S. (1999). Accordingly, the clerks of those courts must keep official records of the title and case number references to the various orders, rulings, judgments, papers, and other proceedings of the court in each case (registries of actions). See § 13-1-102, 5 C.R.S. (1999).

In 1978, the Colorado Judicial Branch began storing case records in the electronic Colorado Court System database (the CCS). The CCS contained approximately seventy percent of all Colorado court filings.

In early 1992, Background Information Systems, Inc. (BIS) requested access to the magnetic tapes containing court record information generated through the CCS. The SCA agreed to the request, and at BIS's expense, the SCA created customized new tapes that deleted statutorily confidential information from the bulk of the data. The SCA updated the tapes on a regular basis with new court information.

Beginning in early 1993 and continuing through late 1995, the state converted from the General Government Computer Center database to the Colorado Judicial Information Management System (the CJIMS), a decentralized system operated internally. By May of 1995, 100% of Colorado's court filings were recorded on the CJIMS database. Again, at BIS's request and expense, the SCA created a computerized segregation program to prevent disclosure of statutorily confidential information (such as the names of victims in sexual assault cases), and then released the balance of the information to BIS.

In 1994, the SCA began its conversion to the Integrated Colorado On-Line Network (ICON). ICON was intended to eliminate redundant data collection, establish a single database for participation in the Colorado Integrated Criminal Justice Information System (CICJIS), and improve functioning in court processing, probation case processing, and financial processing. The new CICJIS is a system mandated by the legislature to maximize the sharing and standardization of data and communications technology among law enforcement agencies, district attorneys, the courts, and corrections. See § 16-20.5-102(3), 6 C.R.S. (1999). CICJIS substantially relied on ICON for its operation, and was scheduled to be fully operational statewide by January 1998.

BIS used the magnetic tapes to create a searchable statewide database of Colorado civil and criminal justice records. BIS then sold data from this system to various customers, including businesses and state and local governments. According to BIS, these entities used the information to perform background checks on prospective employees.

In the fall of 1995, the SCA expressed concern that BIS was receiving confidential and inaccurate information through the database.1 As a result, the SCA and BIS attempted to modify the program in an effort to address the problems. In August of 1997, the SCA decided to cease delivery of the tapes to BIS.2 At that time, the SCA still produced the magnetic tapes from the CJIMS database.

During the period when the SCA was releasing the extracted CJIMS tapes to BIS, the tapes included broad civil and criminal case information, such as judgment debtor and creditor information, domestic case filings information, and in some instances, criminal defendants' and civil litigants' social security numbers and drivers license numbers.

On August 29, 1997, BIS applied to the district court pursuant to section 24-72-204(5), 7 C.R.S. (1999) of the Public Records Act for an order directing the SCA to show cause why it should not be required to create and release an electronic database purged of statutorily confidential information. BIS asserted that the Public Records Act imposes upon the courts an implied duty to create such a record at the expense of those desiring it. The district court ruled in favor of BIS and ordered the SCA to provide the database.3

The SCA appealed to the Colorado Court of Appeals, but prior to that court's review of the case, on October 2, 1998, Chief Justice Mary J. Mullarkey issued Chief Justice Directive 98-05 (CJD 98-05). CJD 98-05 established a Public Access Committee and directed as follows:

The SCA[O], as the official custodian of the electronic database, is charged with completing the following requests for information from the ICON system, consistent with the policies and procedures developed by the public access committee.

1. Bulk Requests. Requests for bulk data shall be considered those requests for information from the entire statewide trial court ICON database. The public access committee shall determine the policies and procedures for the release of bulk data pursuant to the following guidelines:

a. The release of such information shall not interfere with the regular discharge of the duties of the courts, probation or the state court administrator's office.
b. Information shall not be released if contrary to the public interest.
Until such time as the committee develops such procedures the custodian of the record may only release bulk data in the form in which the data is currently maintained if the release does not interfere with the duties of the courts, probation or the state court administrator's office; and if the data is accurate and complies with confidentiality requirements.

On December 10, 1998, the court of appeals affirmed the decision of the district court. See Background Info. Servs., Inc. v. Office of the State Court Adm'r, 980 P.2d 991, 992 (Colo.App.1998)

. That court held that the Colorado Public Records Act applied to the courts and imposed an implied duty on the custodian of court records to create a new record consisting only of information that was not statutorily confidential. See id. at 994, 996.

Four days later, on December 14, 1998, the Public Access Committee issued Public Access Policy 98-01. It prohibits the release of bulk data to individuals, government agencies, or private entities. The committee reasoned:

This policy is adopted in the best interests of the public for the following reasons:

• Bulk data, as regularly maintained by the Judicial Branch in the normal course of business, includes information that is protected from disclosure by law. In order to protect confidential information, the bulk data must be manipulated to generate a record in a form that is not used by the Judicial Branch. Thus, release of bulk data is inconsistent with Chief Justice Directive 98-05. Further, the subset of the entire database that remains after the extraction of all data that is confidential is not maintained for the purposes of the operation of the Judicial Branch.

• The rights of litigants and other parties to court actions may be jeopardized by the wholesale release of information.

• Incomplete and inaccurate data are likely to be resident in the complete set of ICON data and cannot be evaluated under this type of release.

• Release of bulk data does not allow for any review of the data or the issues that may arise if disseminated without such review.

Following a petition for rehearing, the court of appeals modified its opinion to address the SCA's concern about the privacy interests inherent in the court records. The court of appeals concluded that the strong presumption favoring access to public information outweighed any invasion of privacy. See Background Info. Servs.,980 P.2d at 993. It further held that CJD 98-05 did not constitute a rule of the supreme court or an order of any court, as contemplated by section 24-72-204(1)(c), because Chief Justice Mullarkey acted alone in adopting CJD 98-05 without the express concurrence of at least two other members of the supreme court. See id. at 995-96.

Shortly thereafter, on February 23, 1999, the supreme court promulgated Rule Change # 1999(3) (the Rule). The Rule reads as follows:

The purpose of
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