The Volokh Conspiracy
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Decisions to Restrict Online Access to Eviction Records Are for Judges, Not for Clerks of Court
So holds the Ohio Supreme Court.
From State ex rel. Parikh v. Berkowitz, decided Wednesday:
Parikh is the elected Hamilton County clerk of courts…. In May 2022, Parikh issued a policy eliminating remote online access to court records in residential-eviction cases older than three years from the date of judgment satisfaction. He states that the purpose of the policy is to prevent members of the public, such as employers and landlords, from inappropriately relying on court documents when considering employment, housing, and other needs of individuals. "[I]t was and remains the belief of the Clerk's Office," he explains, "that these online inquiries led to misidentification of parties with similar names and produced inaccurate and unfair results that harmed citizens." The public remains able to access the records in person at the clerk's office during regular business hours.
The Hamilton County Municipal Court judges objected, and the Ohio Supreme Court sided with the judges:
Parikh restricted online access to court records for the policy reason of protecting what he viewed as the best interests of defendants in closed eviction cases. As discussed below, such a decision may be made only by the municipal-court judges, and they may order the clerk to rescind actions that intrude upon their judicial discretion.
Access to court records promotes openness, transparency of process, and accountability. This principle underlies which states that "[c]ourt records are presumed open to public access." … [A]lthough the Rules of Superintendence do not require that courts or clerks make all case records available online, the rules recognize that the public can access records more easily online than in person at the clerk's office, and they treat discontinuing online access as a means of restricting access to records….
The Rules of Superintendence provide that a court, sua sponte or on a party's motion, may restrict public access to case information or documents. But when so doing, the court must find that the presumption of allowing public access is outweighed by a stronger interest, such as a public policy served by restricting public access. And the court must restrict access by "the least restrictive means available," such as restricting only online, but not direct, access. These rules align with longstanding precedent holding that restrictions on court access "should be narrowly tailored to serve the competing interest without unduly burdening the public's right of access." These decisions, which involve the court's making findings, involve judicial discretion. A clerk of courts' duties, in contrast, are generally ministerial.
Parikh's argument might carry more weight if he were building the clerk's-office website from the ground up and deciding which records to make available online. But as the court of appeals noted below, "[t]his case is not truly about the Clerk's decision to initially provide remote online access in eviction cases, but rather about the Clerk's desire to restrict remote online access to entire judicial proceedings on the premise that he was protecting litigants." Parikh had previously placed the records of all eviction cases online. He then removed the records of eviction cases that were more than three years old, making a policy decision that the privacy rights of the defendants outweighed the public's right to know about the cases. This policy decision to restrict public access to certain court records infringes on the judges' authority to make such decisions….
Linda L. Woeber (Montgomery Jonson, L.L.P.) represents the defendant judges.
