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HELENA - The Montana Supreme Court has suspended its rules governing access to court records, a move that a freedom of information advocate says may result in a step backward in the public's ability to obtain or view those documents.

The rules for privacy and public access to court records in Montana, adopted in 2007 and amended the next year, were meant to provide a uniform policy for the state court system in anticipation of the records becoming available on the Internet. The aim was to maximize public access while protecting individual privacy rights.

But, the high court said in its order last Wednesday, clerks, attorneys and litigants without legal representation have had difficulties interpreting, implementing and enforcing the rules because either they were too complicated or required extra work.

The court said the suspension is temporary and will last until the courts implement an electronic filing system, which could take years.

"It is not the court's intention to abandon consideration of privacy rules altogether, but to have them further considered, reviewed and refined in conjunction with the e-filing process," read the order signed by six of the seven justices.

Instead, the court has changed its civil and appellate rules to keep confidential full birthdates, Social Security and tax identification numbers, financial account numbers and any information not accessible to the public under state and federal law.

That change makes clear what is and isn't confidential information, whereas the suspended rules only limited access to court information because they were so onerous, Supreme Court Chief Justice Mike McGrath said Tuesday.

"From our perspective, this opens access to court records," McGrath said.

Mike Meloy, a Helena lawyer who specializes in freedom of information cases, said he believes the changes have the potential to be a setback for public access to court records. Meloy, who worked with the task force that recommended the rules to the Supreme Court in 2007, said those rules were created with the idea to have a uniform standard that all courts could apply.

Before those rules, it was up to each court clerk to determine what the public would see and not see, and access varied greatly from district to district, and sometimes resulted in denial to documents that were clearly public records, Meloy said.

The concern is that with the suspension of the rules, access will once again be decided by individual clerks and judges and result in inconsistent policies across the state, he said.

"I hope I'm wrong," Meloy said. "We'll see in the next year or so how the clerks of court will take this suspension."

McGrath dismissed the notion, saying court clerks understand their duties and what is or is not a public document.

"There is nothing that grants them the authority to deny anything," he said.

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The decision to suspend the rules was made in response to a petition by State Law Librarian Judith Meadows and Elaine Dahl of the Montana Legal Services Association, who were concerned that sensitive information about children involved in a custody dispute, divorce or another proceeding could find its way to the Internet, where it could be used to bully a child or be gathered by child predators.

The state court system's move to electronic filing has been delayed by a couple of years because of funding, but a request for proposals should be issued by early next year with pilot programs possibly being conducted by 2013, said Supreme Court clerk Ed Smith and Meadows.

Corbin Howard, a Billings attorney who practices family law, said he agreed with the court's decision because the rules should be developed alongside the technology.

"It has to be done right. The rules and the software have to dovetail with each other. That's the key thing in suspending the existing rules until that happens," Howard said.

The one justice who did not sign the order, Justice James Nelson, wrote that putting the privacy and public access rules on hold now will make it more difficult to protect those constitutional interests of individuals later, when e-filing becomes a reality.

Instead, the rules should be fine-tuned before the state has to deal with electronic filing," he said.

"The transition to a paperless or web-based filing system will be less traumatic if the bench and bar become accustomed now to the sorts of requirements that e-filing will eventually dictate," Nelson wrote.

 

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