With the New Year will come a significant change to how documents are submitted and retrieved in the Pennsylvania courts. The Pennsylvania Supreme Court has adopted a new public access policy that establishes uniform standards for all trial and appellate courts in Pennsylvania. This policy will dictate how public records are accessed as well as how certain information is to be submitted to the court. While this change hasn’t had much publicity, it could have a tremendous impact on how you submit and retrieve materials from the court. This policy goes into effect on Jan. 6, 2018, and provides detailed guidelines for those who file court documents as well as for those who wish to view documents through the court.
The goal of the policy is to balance access to information with concerns for privacy of the information. According to Chief Justice Thomas G. Saylor, as stated in the news release by the Administrative Office of the Courts, “this new policy simplifies and unifies the process by which the public may access case records in trial and appellate courts statewide, but it does so while safeguarding the privacy and safety of citizens.”
The policy is titled Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts 204 Pa. Code Section 213.81 and has 12 sections. This new public access policy identifies the specific types of information that must be protected from public view, describes the manner in which confidential information must be protected, creates a standard that dictates how courts must respond to and process requests for case materials, addresses the fees and limitations for such requests, imposes limits on remote access to case records and even addresses the manner in which clerical errors are corrected.
For practitioners filing pleadings and documents with the courts of Pennsylvania, sections 7 and 8 of the public access policy are of the utmost significance. Section 7 of the policy states that any of the information deemed confidential by the policy shall not be contained in any pleading, document or legal paper filed with the court, except on the newly created confidential information form, which is to be filed contemporaneous with the pleading or document.
The information deemed confidential by the policy includes:
“This information must now be submitted with a confidential information form which is to be filed contemporaneously with the pleading or document. The confidential information form can be found at http://www.pacourts.us/assets/files/page-1089/file-6364.pdf. Instead of using the confidential information form, a court may allow a pleading or document to be filed in two versions: the redacted version and the un-redacted version. The redacted version shall not include any of the confidential information and the un-redacted version would presumably be filed under seal. It should also be noted that the policy does not apply to cases that are sealed or exempted from public access, such as cases filed under the Juvenile Act.
In Section 7(D) of the policy, it states that a certification acknowledging compliance with the policy by the parties and their attorneys must accompany each filing. The parties and their attorneys must confirm compliance with the provisions of the policy via the certification. The court states that the certification is solely the responsibility of the parties and their attorneys. The court suggests the certification may read as follows: “I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information in documents differently than nonconfidential information and documents.” In the commentary for Section 7, it is noted that the certification must be complied with whether the documents are filed in paper form or via the court’s e-filing system. The commentary also suggests that a compliance checkbox be created where e-filers can indicate their compliance with the policy.
Failure to comply with the policy is not without consequence. Section 7(F) provides that if a filing fails to comply with the requirements of this section, a court may, upon motion or on its own initiative, order the filings sealed and redacted. Further, a court may also impose appropriate sanctions, including costs necessary to prepare a compliant filing. Therefore, an attorney who fails to abide by this section does so at his or her own risk, as sanctions may result for such failure.
Section 8 of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts identifies the following documents as confidential, meaning they must be filed under cover of a confidential documents form. These documents are:
These documents must be filed with the confidential documents form as this section does not provide the option of filing a redacted version of the document. This section also requires certification by the party and their attorney and just as in Section 7, a failure to comply with this section’s requirements opens an attorney up to sanctions. In the commentary of both sections 7 and 8 it is noted that a party can make a motion to cure any defects in their filing that does not comport with the policy.
This is just a brief overview of some of the most pressing issues that this policy presents for the practitioners, however, I invite everyone to take a look at the complete policy which can be found here: http://www.pacourts.us/assets/opinions/Supreme/out/477jad-attach1.pdf.