In re Estate of Engelhardt, 2004 WL 345941, a one-judge decision by a Ohio Probate Court judge, comes out solidly in favor of public access to such records. Hamilton County Probate Court apparently routinely puts all its records on the Internet (see, e.g., Engelhardt’s will, which I quickly found by searching on the site). Representatives of Engelhardt’s estate asked the court to take down records of their case, because “said records contain sensitive financial information,” such as “bank account numbers and balances, stock and brokerage holdings and a CPA’s evaluation of a closely held corporation.” Publishing such records on the Net, they argued, puts people “at significant risk for theft and harm and infringes on their constitutional right of privacy.” They agreed that under the Ohio Public Records Act the records had to be publicly available at the courthouse, but they wanted the documents to be removed from the Web.
The judge disagreed: Once a court starts routinely putting records on the Internet “as an integral part of the normal operations of the public office,” the judge held, the Ohio Public Records Act requires that the records be retained there (possibly with an exception for extremely private records, but the court just suggested that, and didn’t go into details). The judge did not say that the Constitution, federal or state, requires that such records be published, but it did say that Ohio law so requires (though I’m not positive that the judge got that right), and that Ohio law certainly doesn’t require the removal of the records when people object on privacy grounds.
The judge also suggested that the Americans With Disabilities Act might bar such removal of records, on the theory that such removal would make it harder for people to access records when their disabilities prevent them from traveling to the courthouse; among other things, the court cited 28 CFR sec. 35.160(a),
A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.
I express no opinion on whether the ADA indeed imposes such a mandate, either on courts generally, or on those that already regularly post their materials on the Web.
As I mentioned, this is a one-judge decision, and isn’t binding precedent anywhere — I take it that another judge in that very county could reach the opposite result (though not in a lawsuit brought by the same parties). I don’t know what appellate courts, whose decisions are binding precedent in their jurisdiction, and are more persuasive elsewhere as well, will likely do with this. But still, this one-judge decision might well prove influential, especially since this question hasn’t been much discussed by other courts. And of course its reasoning affects not just probate records, but also state property tax records, filings in civil and criminal cases, and lots of other documents.
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