South Dakota’s state court officials are redacting sensitive data, before records become open to citizens through the internet

Capitol News Bureau

PIERRE, S.D. (KELO) — South Dakota’s top state-courts official said Friday the target now is early next year for citizens to have open access to state court records through the internet.

South Dakota Supreme Court Chief Justice David Gilbertson said the immediate challenge is removing sensitive information from the records, a process known as redaction that is allowed by state and federal laws.

Lawyers and their staffs currently have computer access to the records. And anyone can look at records for a specific case, if they go to a county courthouse and use a controlled-access computer terminal when the clerk of courts office is open during weekday-business hours.

The federal government’s courts system operates a similar service known as PACER. South Dakota’s state-government courts are under the umbrella of the state’s Unified Judicial System.

South Dakota’s conversion toward a PACER-like system was several years in the planning and involved a lot of stakeholders and UJS personnel, according to the chief justice.

He noted that at one point in the late 1970s and the early 1980s South Dakota indexed divorce cases by the Social Security numbers of the soon to be ex-spouses.

“We had too many people with common names such as ‘John Smith’ getting divorced,” Gilbertson said. “So to keep them separate from the other John Smiths, the UJS starting indexing them by their social security numbers.

“At that point there were no computers and nobody had ever heard of identity theft.  I am sure you can appreciate the redacting of an index itself. let alone the pleadings, creates some unusual challenges,” he said.

Greg Sattizahn is administrator for South Dakota’s state courts. He said the new system was the product of a working group that consisted of attorneys, abstractors, judges, technology staff, clerks of court and court administration who discussed system demands and provided feedback.

The new system was first released to abstractors almost a year ago, according to Sattizahn, and allows them the ability to do their job remotely. Next came testing with a small “pilot” group of attorneys.

The new system rolled out statewide for attorneys July 1. It allows them to check case information and documents from all types of public cases.

The next step this fall, Sattizahn said, adds what he called “justice partners” such as jails, law enforcement and the South Dakota Department of Corrections. 

The final phase will be opening the system to the general public. “The most significant step required to make that leap to the public sphere is the testing of a redaction solution that can assure that we are not putting out to the world personally identifiable information such as SSNs (Social Security numbers), bank accounts, taxpayer IDs and the like for court users,” Sattizahn said.

UJS is working on that portion. Chief Justice Gilbertson said Friday the revised timeline now calls for citizens to have open access early in 2020.

There’s a fallback, according to Sattizahn: “If we are not able to confidently proceed with a redaction solution within that time frame. we may open it up without documents and just case data until we tackle that portion.”

That’s still being worked out, he said.

“It may be that it will be documents moving forward if the redaction is triggered upon filing. So while we are making progress there are still some items to be determined, particularly the redaction piece,” Sattizahn said.

He continued, “The way we are currently configuring the case-lookup system would allow a name search but we would also require another piece of identifying information to ensure the correct person and case is returned and to safeguard against data mining.  So this would mean at a minimum the last name and then also either a date of birth, offense, county of case sought or a date range.”

The billing structure currently is 10 cents per page, with a maximum document charge of $3.00, and is ‘pay as you go’ for a user interested in a particular case, according to Sattizahn.

He said someone seeking a full civil- or criminal-background search should continue using the current online-records search process.

Below are related exchanges about the new approach.

KELOLAND Capitol News Bureau reporter Bob Mercer met Friday with South Dakota Chief Justice David Gilbertson. The topic: Broadening the public’s access to records from the state’s circuit courts. One of the words is redaction. That means removing from a public record a piece of information that legally can be kept private.  Here’s a lightly edited transcript of the interview. 

Bob Mercer: We’re here today to talk about the open records or public access project. How did that come about? 

Gilbertson: Well, first off, in 2014, we went totally electronic in our court records. Became paperless in essence. This was the next logical progression towards a totally paperless system, which is our ultimate goal. And it also improves the public’s access. 

Bob Mercer: Who’s worked on this? 

Gilbertson: Our IT department has worked long and hard on it and we also created an advisory group of lawyers, judges, abstracters, law enforcement people, our internal staff – all the key players in the system. 

Bob Mercer: What is the timeline to make it fully public? 

Gilbertson: Fully public is a little iffy because of the redaction issues. There are a lot of sensitive material in those records. At one time the court actually indexed by people’s Social Security numbers. There’s also bank records and income tax documents in there. All those things need to be redacted before we can make the documents available to the public. My staff tells me they’re hoping early next year, but since we haven’t accomplished it yet, we’ll know when we get done. 

Bob Mercer: If someone went to the courthouse now, would they be able to see those documents with that information? 

Gilbertson: In part. They could view them on a monitor in front of the (court) clerk, if they had a file number. If they don’t have, we will assist you, through the clerk, in locating that case only. However, if you want copies, and they have not been redacted yet by the attorney when they were filed, the clerk will redact that information before giving you the copy. 

Bob Mercer: Anything else you want to point out? 

Gilbertson: I don’t think so. This is just a logical progression, I think, in making us more efficient, making us more accessible. It saves a lot of people trips to the courthouse. But we’re still trying to protect people’s privacy, so these people that steal data and identities, that may not even be in the United States, cannot sit and illegally mine this information. 

Recently KELOLAND Capitol News Bureau reporter Bob Mercer also asked South Dakota state-courts administrator Greg Sattizahn about how the access system will work. 

Bob Mercer: Is the publicly-sensitive but non-redacted information currently available via the Internet to any lawyer and her/his administrative staff? 

Sattizahn: Yes, under the old system lawyers only had online access to their own cases so the potential for harm was clearly mitigated.  Under the new system lawyers will now see other cases and that may include unredacted information but attorneys as officers of the court have ethical restrictions and oversight that would not apply to the general public. 

An attorney who violated this limitation would potentially be subject to disbarment and a civil suit for damages by the victim. 

In many cases, particularly sensitive information may be filed under seal.  In those instances, lawyers would have to go to the court to seek permission to view those documents and (the documents) would not be available online. 

The redaction solution is essentially looking for items that should have been redacted upon filing but were missed and is a check on the system before that information is released broadly. 

Bob Mercer: Will the publicly-sensitive but non-redacted information continue to be available to anyone who goes to a courthouse? 

Sattizahn: The terminals will still exist and a person may be able to view information that the attorneys have not redacted in a case.  Ultimately, the burden is on the filer of the document to comply with the court records rule to protect sensitive information.  However, if they seek to obtain printed copies the clerk of court will attempt to manually redact information if it is discovered. 

The difference frankly is that by having to go to a courthouse to view records, print and pay for the printed copies involves a different level of protection than random searches online from home at any hour of the day.  The UJS (South Dakota Unified Judicial System, aka the state government’s courts) does not believe that we can responsibly republish this information in such a broad format without at least another layer of protection in place. 

Bob Mercer: Will the publicly-sensitive but non-redacted information be removed only for citizens who use the Internet or for all people including lawyers and their office staffs? 

Sattizahn: The redacted versions would appear for anyone viewing the case.  As contemplated the redaction will take place upon filing and so would catch all documents moving forward. To view non-redacted versions of those documents would require approval of the court. 

Bob Mercer: What will the format be for the new South Dakota system?

Sattizahn: It will be an online search format with searches available by name and one other unique identifier.

Bob Mercer: Will it resemble the federal PACER system?

Sattizahn: In many respects it will.  This the standard in the area and most state court attorneys and users are familiar with that model.

Bob Mercer: Who were sources for this change?

Sattizahn: This has been part of the ‘Technology Roadmap’ ever since we began looking at a new case management system.  This is something that we have consistently heard was a desired feature of a state court information system.

Bob Mercer: Does the State Bar, which has a rotating presidency, support it?

Sattizahn: The State Bar in general has been very supportive but we did not solicit any specific endorsement from the State Bar president.  The system was the subject of a continuing legal education seminar at the State Bar annual meeting in June.

Bob Mercer: Do the county court clerks support it?

Sattizahn: Yes, this provided a mechanism for the public to access documents they would otherwise have to contact the clerk of courts to receive, so it represents a gain in efficiency for them.

Bob Mercer: Was there a committee or working group? What is its history?

Sattizahn: This is an area that has been on the UJS interest list since we moved to electronic case documents and installed the Odyssey system statewide in 2014.  There was a committee appointed by our Technology Council to study the feasibility and functionality requirements.  The members were:

Supreme Court Justice Glen Severson (now retired)  

Supreme Court Justice Steven Jensen  

Adam Hoier, an attorney from Sioux Falls                       

Steve Huff, an attorney from Yankton

Randee Ertz, a paralegal from Brookings                     

Greg Wick, an abstractor from Rapid City                           

Joseph Ashley, an attorney from Pierre                   

McKean, Barbara, Davison County clerk of court, Mitchell             

Kristi Erdman, Seventh Judicial Circuit administrator, Rapid City                   

Megan Borchert, UJS staff attorney, Pierre             

Circuit Judge Eric Strawn of Deadwood          

Circuit Judge Scott Myren of Selby         

Greg Sattizahn, state court administrator                 

John Kayser, information technology, Unified Judicial System                        

Marci Stevens, clerk support, Unified Judicial System                  

Aaron Olson, budget and finance officer, Unified Judicial System                      

Chuck Frieberg, chief court services officer, state of South Dakota                 

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