E-filed documents may tell more than attorneys intend

August 10, 2016

A panel advising the Indiana Supreme Court on which trial court records should go online has recommended that petitions seeking to expunge criminal records eventually be posted on the state court’s website for public case information and that all juvenile records be excluded.

Meanwhile, court officials also are recommending lawyers be cautious when submitting e-filed documents, because those submissions may carry metadata revealing more than an attorney might intend.

Cleaning records

Bob Rath, director of Appellate Court Technology, told the Advisory Task Force on Remote Access to and Privacy of Electronic Court Records on July 29 that e-filed documents may contain information stored as metadata. This may include the date and time a document was created, the author of a document, and any data that may have been entered in a document’s subject field.

In an interview, Rath said this information may be stored when a word processing document is saved in a PDF for e-filing. “We don’t do anything with the metadata,” Rath said. “We don’t use it for any reason.”

But Rath said concerns had been raised about the metadata that opposing parties or anyone else accessing e-filed documents online might be able to see. It’s not the case, as some had feared, that edits made to a Microsoft Word or similar word processing document may be accessible in an e-filed document. Rath said such data stored in the word processing file is “scrubbed” as a process of converting the document to a PDF.

However, the potentially sensitive information such as the document name, author, create data and anything entered in a subject field of a Word document may carry over to the PDF file. To avoid this, Rath recommended scrubbing the word processing file before saving it as a PDF.

“If they’re using (Microsoft) Word, which is most commonly the case, if they just run ‘Inspect’ before they save, it will show all the data that may or may not be converted over,” including subject, keyword, author and title, Rath said. Scrubbing this data is simple. Commonly in Word, this can be done under the File tab by clicking “Check for Issues,” then “Inspect Document.” Hitting “Remove All” will clear these fields, so nothing will appear from the original Word document as metadata. Metadata most often can be seen on downloaded PDF files by clicking “Properties.”

Rath noted there’s a greater risk in metadata being accessed when a Word document is shared. He said running “Inspect” or similar word processing reviews to erase metadata before sharing any document is a practice lawyers should consider.

Expungements online

The task force recommended expungement petitions be posted on the mycase.in.gov website. That site is the portal for public information from Indiana trial courts that have adopted the state-sponsored Odyssey case management system.

The task force unanimously recommended the petitions be posted until a judge orders an offense expunged. After such an order is issued, the expungement case file would be removed, as would state court records of the expunged offense.

“Once that order is issued, then that case is confidential and you won’t see it on mycase,” Director and Counsel for Trial Court Technology Mary DePrez told the task force. But in a case where a petition is denied, both the conviction and the unsuccessful expungement case would remain available online under the task force’s recommendation.

It’s uncertain how soon trial court orders will be posted on mycase, but it won’t likely happen until next year or later. The Supreme Court will act on recommendations about putting orders, pleadings and filings online after the task force reports its recommendations at a later date.

Panel member and Indiana University Robert H. McKinney School of Law professor Joel Schumm expressed initial reservations about posting expungement records online. He said doing so could harm people trying to get a job, for instance, if the crime turns up in a background check.

“Any low-level felony case could potentially be expunged,” he said, noting that even after an offense is removed from someone’s record, private vendors and third-party web sites may continue to report the offense. “You can’t necessarily put that genie back in the bottle.”

DePrez noted that under bulk-sharing agreements the courts have with outside vendors, those third parties are required to reload the entire database with each new data dump, mostly on a monthly basis.“Cases that have been expunged will not be available to them,” she said.

Some panelists said there was a public interest in keeping expungement petitions public, particularly in high-profile cases where a prosecutor may not consentor where victims or interested parties might wish to address the matter in court.

The group’s decision to post expungement petitions online came as it separately recommended that all convictions, abstracts of judgment and sentencing orders in criminal cases be posted online, with the exception of “miscellaneous criminal” case types. Those cases most often deal with warrants, subpoenas, interstate compact issues, mental health issues and other matters that may not be subject to public disclosure.

Juvenile records shielded

The panel also voted 7-1 to recommend that records in all juvenile proceedings be kept off the website, after some discussion about records in juvenile proceedings that are not confidential.

Task force member Ken Falk, legal director of the American Civil Liberties Union of Indiana, and Schumm said a preferable policy is to shield all juvenile proceedings from online access even if they may be public records. “This would be consistent with what happens at the appellate court now,” Schumm said.

Hoosier State Press Association Executive Director and General Counsel Stephen Key cast the lone vote against the recommendation. Key said he believed information that was public in juvenile cases should be posted online and that it was possible to address clerks’ concerns so that only the information the Legislature has deemed public would be posted.

The task force’s next meeting is Sept. 2 at the Indiana State Library, 315 W. Ohio St., Indianapolis.•


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