Comments Update: Final Trial Court Rule on Attorney Portal Use Reflects Revisions Suggested by BBA Section Comments

As you know, we regularly collect and submit comments on proposed new and amended rules and court orders from our Section Steering Committees, who offer insights from the viewpoint of a particular practice area. The courts have a strong history of listening and responding to the concerns and suggestions of the Sections, and their insights are often reflected in the final iterations of the rules. Indeed, just this month the court released a final version of a rule that incorporated feedback from BBA sections on the proposed version. The Rule – Rule 5(b) of Trial Court Rule XIV: Uniform Rules on Public Access to Court Records on use of the online Attorney Portal – will become effective on July 1, 2018, and can be read in full here.

In October 2017, Chief Justice of the Trial Court Paula Carey issued a notice inviting comment on proposed amendments to Trial Court Rule XIV Public Access to Court Records, a Rule with which the BBA already had a long history. In 2016, the BBA established a working group to consider the proposed rule and, along with various sections, submitted substantial comments. You can read about our past work on this here and here.

When Trial Court Rule XIV was eventually adopted, Section 5(b), on Remote Access to Information in Electronic Form through the Attorney Portal, was given only provisional approval, with a note that it would be reconsidered following further recommendation from the Chief Justice of the Trial Court. The invitation to comment reflected the expected revisions to this Section, and proposed a few key changes, namely:

  • The reintroduction of the ability to search for other non-exempt cases by party name, even when one has not entered an appearance in the case
  • The addition of safeguards, specifically “Terms of Use,”that attorneys must accept before logging on to the Portal, which prohibit the improper use of accessed data and data scraping. These terms also include a statement that all searches can be audited and are subject to sanctions provided by law or court rule, with violations reported to the Board of Bar Overseers.

The Ethics CommitteeCriminal Law Section Steering Committee , and Business and Commercial Litigation Section Steering Committee submitted comments on the proposal. Members of these Committees were generally satisfied with the substance of the rule itself, but nevertheless highlighted a few aspects of the proposed amendment that could benefit from additional explanation or clarity.

For example, the Ethics Committee began by stating that they felt the comments were reasonable and useful overall, but noted one provision they felt was a bit vague. The Terms of Use (“terms”) provide that use of the portal cannot risk the “integrity or security of the trial court’s case management system.” Members of the Committee did not feel it was totally clear what types of behavior would create that risk and some were concerned that the burden of reducing this risk would fall much heavier on those working in smaller firms or with fewer resources. Members suggested adding an intent element by, for example, inserting the word “knowingly,” that would help to lessen the risk of unfairly burdening certain types of portal users.

The final version of the terms adopts this recommendation and the revised language now reads: “You may not use the Attorney Portal to access information in a manner that knowingly risks the integrity or security of the Trial Court’s case management system…”

The Criminal Law Section Steering Committee made a few comments on both the rule itself and the terms. Specifically, the Committee discussed the piece of Rule 5(b) that provides the Trial Court Departments can request permission from the Chief Justice to exempt certain criminal case types or categories of information from remote access. Members hoped the portal would include department-specific notice as to the types of cases exempted, to prevent any uncertainty that may arise when a search returns no results. These members were clear, however, that they did not think a search by a specific name should indicate that there was a sealed or impounded case, for privacy purposes, but instead there should be a general notice of the types of cases exempted (e.g. juvenile cases, child custody actions, etc.).

The Committee’s comment related to the terms noted a point of ambiguity in a provision, which stated in the proposed language that one must not leave their computer or work area unsecured while logged in to the portal. Members felt this provision was somewhat vague as drafted (what exactly does it mean to leave a work area “unsecured”?) and redundant, as the Terms provide elsewhere that you are fully responsible for the activity that occurs under your login. In response to this suggestion, the Court removed mention of the “unsecured work area,” leaving it clear that one is fully responsible for all activity that occurs under the login credentials.

Finally, the Business and Commercial Litigation Section Steering Committee pointed out a few additional areas they considered to be somewhat unclear. First, in the rule itself, members thought the language could be improved to ensure that it is clear the rule does intend to allow attorneys to search for and access those cases in which they have not appeared. In the revised Rule, the language was edited to make this point more evident, and it now makes clear that registered attorneys “shall have access to a portal providing remote access to all nonexempt cases, and a calendar of scheduled events in the cases in which they have entered an appearance” (emphasis added).

In the terms, the Committee thought the definition of “data scraping” could be improved in order to reduce the risk of overbroad application of this prohibition to standard automatic features (like copy and paste). The proposed definition described data scraping as “an automated process, or technique, used to extract or collect data from a source, such as a website or applications.” Committee members offered an alternative definition they felt would be broad enough to offer security against improper data collection but not so broad as to limit proper usages of the portal. The new definition in the final version of the terms largely tracks the recommendation and now describes data scraping as “the use of a computer program or other automated process or technique to extract or collect data from the Trial Court’s case management system.”

Finally, the committee members felt the terms should be revised to clarify an attorney’s responsibility for the use of their login credentials. The proposed terms provided that one may be subject to sanctions and referred to the Board of Bar Overseers “if you (or persons you allow to use your login credentials)” use the portal in a way prohibited by the terms. Members thought this was inconsistent with a prior provision which made clear that one is fully responsible for all activity that occurs under one’s login credentials, regardless of whether permission to use was granted. The final version of terms adopts this recommendation and now provides that the consequences for prohibited use apply to attorney use as well as “persons who use your login credentials.”

As always, we are very appreciative of the hard work and expertise offered by the Committee Members and were thrilled that the court adopted many of the suggestions. To learn more, you can read the full comments submitted by the BBA here, and to read more about the impact of past BBA Comments check out:

Busy BBA Sections Submit Comments on Five Proposed Rule Changes and New Rules

BBA Government Relations Year in Review: Part II

Update: Online Access to Court Records

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association